DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Jacquie Blackburn
v
ESI Financial Services T/A Energy Super
(U2018/6100)

Application for an unfair dismissal remedy – whether Applicant terminated at initiative of employer – Deed of Release signed by parties stating that Applicant resigned from employment – application to dismiss pursuant to s.587(1)(c) – parties entered into a settlement agreement

[1] Ms Jacquie Blackburn has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal from ESI Financial Services T/A Energy Super (ESI) was harsh, unjust or unreasonable (the application).

[2] Ms Blackburn commenced employment with ESI on 24 April 2017 as a Fund Development Manager. Ms Blackburn alleged that she was notified of her dismissal on 30 May 2018, and dismissed one day later on 31 May 2018.

[3] On 28 June 2018 ESI filed its response to the application. ESI alleged that Ms Blackburn had resigned from her employment effective immediately on 30 May 2018. ESI made a jurisdictional objection to the application on the grounds that she had not been dismissed at ESI’s initiative.

[4] ESI’s position is that the parties agreed that Ms Blackburn’s employment with ESI would end by way of resignation on 30 May 2018 in a Deed of Release (the Deed) signed and executed by the parties. The Deed provides the following relevant terms:

(a) At clause 2(a): In consideration of the releases provided in this Deed and subject to the terms of this Deed the Company will pay Ms Blackburn the equivalent of six weeks’ pay plus any annual leave entitlement (Payment) within 14 days of receipt of this deed executed by Ms Blackburn;

(b) At clause 3: By entering into this Deed, the parties agree that Ms Blackburn will be deemed to have resigned from the Employment, effective 30 May 2018;

(c) At clause 4: Ms Blackburn releases and discharges each member of the Group from all Claims which Ms Blackburn has or which but for this Deed could, would or might at any time in the future have, or have had against any member of the Group in respect of or arising out of, either directly or indirectly, the Employment, and/or the Termination including but not limited to any Claims in respect of……..(x) unfair or unlawful dismissal, adverse action, discrimination, harassment, sexual harassment, bullying, victimisation or vilification; and

(d) At clause 5: The parties agree that this Deed may be pleaded by the Company and any other member of the Group as an absolute bar in any court of law, arbitral tribunal or otherwise in response to any proceedings or Claim whatsoever brought by Ms Blackburn arising out of or touching on or concerning the matters referred to or contained in this Deed.

[5] ESI submitted that the application was frivolous and vexatious and had no reasonable prospects of success and on those bases should be dismissed in accordance with s.587 of the Act. Section 587 of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[6] The parties participated in a conciliation conference before a Fair Work Commission (the Commission) staff conciliator on 11 July 2018. The matter could not be resolved through conciliation, and was subsequently allocated to me for determination.

[7] On 1 August 2018 an email was issued from my chambers drawing the parties’ attention to the Deed and noting that from the face of the Deed it appeared that:

(a) Ms Blackburn’s employment had ended by way of resignation, not termination at the initiative of ESI;

(b) Ms Blackburn had released and discharged ESI from all claims which she may have been able to bring against ESI arising out of her employment with ESI (including claims of unfair dismissal); and

(c) ESI may plead the Applicant’s agreement to the Deed as an absolute bar to any proceedings brought arising out of Ms Blackburn’s employment with ESI.

[8] I invited Ms Blackburn to provide her view on how this matter may be heard in light of the existence of the Deed and the issues set out above.

[9] On 13 August 2018 Ms Blackburn provided to my chambers her views on the existence of the Deed. Ms Blackburn’s view is that she was forced to sign the Deed under duress while she was under a medical certificate stating that she was unfit to work. Ms Blackburn seeks for the Deed to be set aside. She has not provided any information regarding the payment to her of six weeks’ pay pursuant to the Deed.

[10] On 16 August 2018 an email was issued from my chambers to the parties asking that the parties indicate whether a hearing of this matter was required for the parties to make oral submissions on the jurisdictional issue arising in this matter, and to hear evidence, or whether this matter could be determined on the papers.

[11] Ms Blackburn requested that this matter be determined on the papers on the grounds that her exposure to employees of ESI dealing with her unfair dismissal application would aggravate health issues arising from her employment with ESI. ESI agreed for this matter to be determined on the papers on the condition that it was allowed to submit additional information regarding Ms Blackburn’s submissions of 13 August 2018. On 31 August 2018 ESI filed its closing submissions on the jurisdictional objection.

[12] Ms Blackburn was afforded until 7 September 2018 to provide a response. However she elected to file and serve her response on 31 August 2018, following receipt of ESI’s closing submissions. Ms Blackburn’s evidence and submissions relate to her incapacity to work due to stated anxiety and stress exacerbated in the course of her employment, and during the period in which Ms Blackburn’s employment with ESI ended.

[13] On 14 September 2018 ESI filed submissions in reply to Ms Blackburn’s closing submissions and supporting material. My decision was reserved on the same day.

Events leading to Ms Blackburn’s employment ending

[14] The following matters relating to Ms Blackburn’s employment with ESI and leading to the end of her employment were generally uncontested in the submissions of the parties, although Ms Blackburn and ESI characterised the matters differently in their submissions.

[15] The parties agreed that Ms Blackburn commenced employment with ESI on 24 April 2017 in the position of Fund Development Manager. Ms Blackburn was required to meet performance expectations and to complete required training modules in the course of her employment with ESI.

[16] Notably, Ms Blackburn was required to complete a course of training modules related to financial services within twelve (12) months of the commencement of her employment which would enable Ms Blackburn to fulfil the requirements of her position with ESI. Those training modules were collectively referred to as the “RG146” course. The RG146 course was managed by a third-party organisation, and it was that third-party organisation that set the 12-month time limit for completion of the RG146 course.

[17] Under the terms and conditions of her employment Ms Blackburn had the benefit of the personal use of a vehicle owned by ESI and of a credit card held by ESI. Ms Blackburn’s personal use of the property of ESI was subject to ESI’s policies on the personal use of its property by its employees.

[18] On 22 January 2018 ESI met with Ms Blackburn to discuss its concerns about Ms Blackburn’s performance, her completion of the RG146 course and her personal use of the vehicle and ESI credit card.

[19] On 22 March 2018 ESI again met with Ms Blackburn to discuss its concerns about her performance and the completion of the RG146 course. A representative from the Financial Services Union (FSU) attended the meeting of 22 March 2018 with Ms Blackburn. ESI advised Ms Blackburn that her performance had been unsatisfactory and required improvement, and particularly that Ms Blackburn needed to successfully complete the RG146 course within the 12 month time limit.

[20] On or about 24 May 2018 Ms Blackburn was notified that she had not passed her final submission in the RG146 course. It is noted that ESI and Ms Blackburn hold different views regarding Ms Blackburn’s completion of the RG146 course.

[21] Ms Blackburn did not attend ESI’s workplace on Friday, 25 May 2018. Ms Blackburn remained absent from work between 25 May 2018 until the end of her employment on or about 30 May 2018. Ms Blackburn did not correspond with ESI during the period that she remained absent from work and instead directed ESI to contact the FSU to discuss the circumstances of her employment.

[22] Very little evidence was put before me regarding the circumstances in which the Deed was negotiated between the parties. It is, however, generally uncontested that Ms Blackburn’s resignation by way of a Deed of Release was proposed by the FSU on Ms Blackburn’s behalf. The terms of the Deed were negotiated between ESI and the FSU on behalf of Ms Blackburn. Ms Blackburn did not directly discuss the terms of the Deed with ESI.

[23] The Deed was executed between the parties on or around 30 May 2018. Ms Blackburn’s signature is witnessed by a Mr Jamie Treble. I assume that Ms Blackburn then provided a copy of her executed Deed to the FSU to provide to ESI.

Ms Blackburn’s submissions

Completion of the RG146 course and performance during employment

[24] Ms Blackburn submitted that she had obtained employment with ESI after responding to an advertisement on Seek, an online job board. She stated that the advertisement that she responded to did not state that completion of the RG146 course would be required for the Fund Development Manager position.

[25] Ms Blackburn submitted that she completed the RG146 course ‘with 99.8% correct’. She did not provide detail as to when she completed the course, or if she did so within 12 months of commencing employment with ESI.

[26] Ms Blackburn stated that she is currently completing a Graduate Certificate of Financial Planning at Griffith University, which she says is a pathway to the Masters of Financial Planning which she had intended to complete. Ms Blackburn submitted that she had adhered to the terms and conditions of her employment contract throughout her employment with ESI.

[27] It is Ms Blackburn’s contention that reasonable use of a company vehicle owned by ESI was allowed under the terms of her contract and had been encouraged by her immediate line manager. She stated that it had been discussed at the initial interview. Her evidence is that the vehicle was always kept at her home overnight, and her use of the vehicle for private purposes never exceeded reasonable use.

[28] Relevant to the ESI credit card, she stated that she had been allowed to use the credit card for her personal use on several occasions throughout her employment and under the terms of her contract of employment with ESI. When she had used the card for personal use she repaid the credit card debt within 14 days as required by the terms of her employment contract.

[29] Ms Blackburn submitted that ESI required her to perform work outside of her ordinary hours and while at home. Upon ESI asking her if she had wireless internet connected at home, and Ms Blackburn confirming that she did, she was then required to perform work at home from time-to-time throughout her employment. Ms Blackburn submitted further that she had been required to use her personal vehicle in the course of her employment with ESI.

[30] Ms Blackburn submitted that the HR department never sought permission to require her to use her home as a workplace, or her private car. She submitted that she never received financial compensation for work performed at her home or in connection with the use of her personal vehicle in the course of her employment.

[31] Ms Blackburn submitted that ESI had not characterised the meetings of 22 January 2018 and 22 March 2018 as ‘performance review’ meetings; instead having been described to her as ‘catch ups’.

Alleged bullying of Ms Blackburn during employment

[32] Ms Blackburn submitted that the circumstances of her resignation from her employment had arisen after continued bullying behaviour directed towards her by a manager. Ms Blackburn submitted that she had been forced to resign from her employment by the actions of ESI and its employees and she considered her resignation by way of the Deed to qualify as constructive dismissal. She considered the alleged workplace bullying meant that she did not have a safe workplace.

Ms Blackburn’s period of leave commencing 25 May 2018

[33] Ms Blackburn submitted that she was forced to take leave from her employment on 25 May 2018 due to the mismanagement of her employment, the different management styles that she was required to accommodate and the lack of support she had received in the course of her employment which had culminated in a ‘worsening sickness’ for Ms Blackburn.

[34] Ms Blackburn submitted that she had felt that she was unable to resolve her concerns about her employment through any internal procedure within ESI. Ms Blackburn submitted that she ‘had no one to go to in order to resolve the issue other than the Union representative’.

[35] Ms Blackburn submitted that she attended upon her general practitioner after taking leave from her employment. Ms Blackburn filed a copy of a medical certificate completed by Dr Haitao Mo, which stated:

“MEDICAL CERTIFICATE

I HEREBY CERTIFY THAT ON 4^th June 2018 I examined Ms Jacquie Blackburn who will be unfit for duty from 28/05/2018 up to and including 04/06/2018.

Dr Haitao Mo”

[36] Ms Blackburn also filed a copy of a workers’ compensation certificate dated 15 June 2018 and completed by Dr Mo. The workers’ compensation certificate stated that Ms Blackburn was suffering from “Anxiety exacerbated by stress from work”, and that the mechanism of her injury was that she had “been bullied and harassed by management”. The certificate nominates the ‘Patient’s stated date of injury’ to be 22 October 2017.

[37] The workers’ compensation certificate also stated that Ms Blackburn’s injury was affecting cognitive and psychosocial function, and that Ms Blackburn required a “safe and harass/bullying free environment”.

[38] Ms Blackburn submitted that the medical certificate and workers’ compensation certificate proved that she was not fit to work during her period of leave from her employment from 28 May 2018 until the date her employment ended on or about 30 May 2018.

Negotiation and execution of the Deed

[39] Ms Blackburn submitted that her decisions regarding the Deed and the end of her employment had been made while she was unfit for work. Ms Blackburn submitted that her decision to sign the Deed had been made under duress and during a time of sickness/stress where she should never have made such a definite decision other than for her stability.

[40] Ms Blackburn submitted that ESI had used the Deed as a ‘weapon’ and had put a timeframe on the execution of the Deed, failing which ESI would not have agreed to sign the Deed. Ms Blackburn submitted that the circumstances of her health and the fact that she was ‘on a Workcover claim’ was known to ESI during the negotiation and execution of the Deed.

[41] Ms Blackburn submitted that ESI continued to intimidate her throughout the negotiation of the Deed and that ESI’s intimidating behaviour was ‘leaked through’ to Ms Blackburn by the FSU. No further information was provided relevant to this assertion.

ESI’s submissions

Completion of the RG146 course

[42] ESI submitted that Ms Blackburn was unable to complete the RG146 course within 12 months of the commencement of her employment. ESI submitted that Ms Blackburn was notified on 24 May 2018 that she had failed in her final submission in the RG146 course. ESI did not directly respond to Ms Blackburn’s submissions that she had completed the RG146 course ‘with 99.8% correct’; instead maintaining its submission that Ms Blackburn had not completed the RG146 course within 12 months. ESI did not provide evidence of Ms Blackburn’s ‘failure in her final submission’ in the manner of a printout of a test result page or similar document.

[43] It was submitted that Ms Blackburn had been provided with a position description document including compliance with the RG146 course as a minimum requirement of employment ‘very early on in her employment’ after Ms Blackburn had responded to an advertisement. ESI submitted that it was specifically discussed with Ms Blackburn on several occasions throughout the recruitment process that study for and completion of the RG146 course must be undertaken during the ‘early stages’ of employment with ESI.

Ms Blackburn’s period of leave commencing 25 May 2018

[44] ESI submitted that it had asked Ms Blackburn for relevant correspondence from Ms Blackburn’s general practitioner and WorkCover claim documents ‘many times during the period that (Ms Blackburn) was away’ and submitted that Ms Blackburn has not provided those documents to ESI ‘at any stage’. ESI did not provide evidence of its attempts to contact Ms Blackburn regarding medical documentation or detail in its submissions the times, dates and or methods by which it had sought to obtain that information from Ms Blackburn.

Negotiation and execution of the Deed

[45] ESI submitted that the Commission does not have jurisdiction to hear Ms Blackburn’s application because the terms of the Deed operate as a complete bar to Ms Blackburn’s application. ESI submitted that Ms Blackburn’s application should be dismissed pursuant to s.587(1)(c) of the Act on the grounds that the application has no reasonable prospects of success.

[46] ESI submitted that the terms of the Deed are unambiguous. ESI submitted that the Deed was an agreement, validly made, that precluded Ms Blackburn from pursuing an application for unfair dismissal or ‘any other claim’.

[47] ESI submitted that the negotiation and execution of the Deed was instigated at the request of Ms Blackburn. It was submitted that upon commencing a period of leave on 25 May 2018, Ms Blackburn had decided to cease communication with ESI and had stated to ESI in an email that ESI ‘…should stay in touch with Chris at FSU should you need anymore’. ESI submitted that all further communication between Ms Blackburn and ESI had been directed through the FSU as an intermediary.

[48] ESI submitted that on or about Monday 28 May 2018, it had contacted Ms Blackburn’s representative from the FSU by phone to discuss when Ms Blackburn anticipated returning to work. It is ESI’s contention that the FSU organiser proposed that Ms Blackburn resign from her employment with ESI. The terms of Ms Blackburn’s resignation from her employment were negotiated with the FWU organiser. ESI proposed an initial offer, rejected by Ms Blackburn. She then agreed to the amount of six week’s pay.

[49] ESI submitted that it had no reason to doubt that the FSU was not acting with Ms Blackburn’s full authority to act on her behalf. ESI submitted that Ms Blackburn’s employment ended effective immediately upon execution of the Deed.

[50] ESI conceded that Ms Blackburn was absent from her employment on ‘sick leave’ at the time that she executed the Deed. However, ESI submitted that there is no evidence before the Commission that Ms Blackburn’s capacities were so limited that she could not exercise reasonable judgement in considering the terms of the Deed, particularly as she was also represented by the FSU.

[51] ESI submitted that any response that it had made to WorkCover regarding Ms Blackburn after the execution of the Deed did not breach ESI’s duties of confidentiality or other obligations under the Deed. ESI submitted that it did not discuss any matter related to the Deed or related to Ms Blackburn’s performance during her employment in responses made to WorkCover.

[52] ESI submitted that the Deed was entered into in good faith and was validly executed and that in light of the existence of the Deed, Ms Blackburn’s application had no reasonable prospects of success and should be dismissed.

[53] ESI submitted that in the alternative that I was not satisfied that the Deed was valid or prevented Ms Blackburn from bringing her application, then Ms Blackburn had not been ‘dismissed’ within the meaning of s.386(1) of the Act.

[54] ESI referred to the definition of ‘dismissal’ contained within s.386(1) of the Act, and submitted that Ms Blackburn had not been dismissed because her employment had not been terminated at ESI’s initiative. ESI submitted that Ms Blackburn had resigned at her own initiative and had not been forced to resign because of conduct, or a course of conduct, engaged in by ESI as alleged or at all.

[55] Section 386 of the Act sets out the circumstances in which a person has or has not been dismissed from their employment, and states:

“386 Meaning of dismissed

(1)  A person has been dismissed if:

(a)  the person's employment with his or her employer has been terminated on the employer's initiative; or

(b)  the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2)  However, a person has not been dismissed if:

(a)  the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b)  the person was an employee:

(i)  to whom a training arrangement applied; and

(ii)  whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c)  the person was demoted in employment but:

(i)  the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii)  he or she remains employed with the employer that effected the demotion.

(3)  Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

Consideration

[56] ESI rely primarily on the Commission’s general power to dismiss applications that have no reasonable prospects of success pursuant to s.587(1)(c) of the Act. The application of s.587(1)(c) to the circumstance that the parties have made a pre-existing agreement to release the other party from claims arising from or touching upon an employee’s employment has been considered on several previous occasions.

Relevant authorities

[57] In Australia Postal Corporation v Gorman 1, Besanko J stated:

“An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.’

…

a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.” 2

[58] As can be seen from Australia Postal Corporation v Gorman, if there is a binding agreement between the parties, the Commission has the power, and may exercise the power to dismiss an application on the basis that it has no reasonable prospects of success.

[59] The Commission’s power to dismiss an application where it has no reasonable prospects of success may be enlivened where a pre-existing and binding agreement between the parties prevents such application from being made. In Thomas v Symbion Health (Thomas), 3 Commissioner Gooley (as she then was) stated:

“Section 587 empowers Fair Work Australia to dismiss an application for relief in circumstances where the parties have reached a binding agreement settling a claim and one party reneges on that agreement and seeks to have their claim determined. It is not necessary to make a finding that the application is frivolous or vexatious or that the application has no reasonable prospects of success as section 587 provides Fair Work Australia with a broad discretion to dismiss an application.” 4

[60] In Masters v Cameron, 5 the High Court of Australia held that when parties reach an agreement on terms of a contractual nature and agree that the negotiations will be dealt with by a formal contract, the case may belong to any of the following three categories:

(1) the parties have agreed on all terms and intend to be immediately bound to perform those terms “but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect”; or

(2) the parties have agreed on all terms and intend no departure from or addition to that which their agreed terms express or imply, “but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document”; or

(3) the parties do not intend “to make a concluded bargain at all, unless and until they execute a formal contract.” 

[61] The High Court held that a binding contract between the parties to carry out the terms agreed existed between the parties in the first two of the above categories. For the third category, a binding contract only exists upon the execution of a formal contract.

[62] In my decision in Gill v Rio Tinto Aluminium Limited T/A Rio Tinto Weipa [2017] FWC 2903, I dismissed an application for unfair dismissal as I determined in that matter that the parties had entered into a settlement agreement (albeit oral). Following the principle in Thomas v Symbion Health, I determined that the application had no reasonable prospects of success because the parties had entered into the settlement agreement (my current emphasis).

Was the Deed validly entered into?

[63] In considering ESI’s s.587 application, I must consider whether the Deed was validly entered into by ESI and by Ms Blackburn. If that is the case, then it follows that Ms Blackburn’s cause of action to make the present application was extinguished before her application was made. The present application must be dismissed in those circumstances.

[64] I have had regard to all of the evidence and submissions before the Commission.

[65] Ms Blackburn’s submissions have focused on her purported incapacity to execute the Deed in the circumstances of her ill-health and her allegations that she was subject to duress upon her to execute the Deed and resign from her employment.

[66] Ms Blackburn submitted that ESI used her ill-health to its advantage and placed duress upon Ms Blackburn to agree to the terms of the Deed. I do not accept this submission. The evidence of both parties is that Ms Blackburn had disengaged from contact with ESI after taking leave from her employment from 25 May 2018 onward, and had directed all communication from ESI to be passed through the FSU. It is difficult to see how ESI could have placed Ms Blackburn under duress while communicating with her solely through her representative.

[67] It is clear from Ms Blackburn’s evidence that she did not obtain a medical certificate stating that she was not fit for work until 4 June 2018 and did not submit a workers’ compensation claim until 15 June 2018; in both instances after the Deed had been executed and her resignation had taken effect.

[68] For its part, ESI’s submissions are that it had attempted to determine Ms Blackburn’s status while she remained on leave from her employment by requesting that she provide a medical certificate for her absence, and a copy of her workers’ compensation claim, which ESI asserted were never provided to it during Ms Blackburn’s employment.

[69] There is no evidence before me that Ms Blackburn’s medical certificate and workers’ compensation application were provided to ESI prior to this matter. In any case, it is difficult to see how ESI could have used its knowledge of Ms Blackburn’s ill-health and workers’ compensation claim to impart duress upon Ms Blackburn to execute the Deed in the circumstances that Ms Blackburn first visited her general practitioner five days after the Deed was executed and did not make her workers’ compensation claim until sixteen days after the Deed was executed.

[70] The medical certificate and workers’ compensation certificate presented by Ms Blackburn supports that Ms Blackburn may have been suffering from at least limited impairment to her cognitive and psychosocial function during the period of the Deed’s negotiation and execution. It should be noted, however, that Ms Blackburn was first examined on 4 June 2018, following the execution of the Deed. She stated to her medical practitioner that she had been unwell since 28 May 2018.

[71] However, there is no evidence before me that Ms Blackburn’s cognitive impairment was so severe that it would have limited her comprehension of the effect of the terms of Deed to such an extent that she was incapable of validly agreeing to the Deed. Indeed, Ms Blackburn appears to have been capable of considering and rejecting the first offer made to Ms Blackburn via the FSU organiser by ESI in negotiating the Deed.

[72] I am satisfied that the FSU organiser initiated discussions with ESI to allow for a settlement between the parties to provide for Ms Blackburn’s resignation. Ms Blackburn has not asserted that she lacked capacity to provide instructions to the FSU organiser, only that representatives of ESI used her weakened bargaining position to hold the proposed Deed as a ‘weapon’ over her head. I understand from Ms Blackburn’s assertions, if she did not sign the Deed, the offer would be withdrawn. Such a position put by any party in a negotiation is not unusual, and often how settlements are ultimately reached between parties.

[73] Further, Ms Blackburn had the benefit of a representative capable of explaining the terms of the Deed to her. There is no evidence or submissions before me that Ms Blackburn’s representative from the FSU was acting outside of instructions in proposing her resignation by way of the Deed or by negotiating the terms of the Deed.

[74] Ultimately Ms Blackburn took counsel from the FSU organiser and seemingly printed and signed the Deed. She had the Deed witnessed, and I assume, returned it to the FSU. This further demonstrates her capacity to have validly entered into the Deed.

[75] Ms Blackburn has never stated that she did not read the Deed before she executed it. I do not accept Ms Blackburn would have been blind to the consequences of reaching an agreement with ESI.

Conclusion

[76] On the evidence before me and the submissions of the parties, I consider that Ms Blackburn was capable of validly agreeing to the terms of the Deed on 30 May 2018.

[77] I am satisfied that the Deed was validly entered into and executed by Ms Blackburn and ESI, and that the agreement reached falls within the umbrella of the second category in Masters v Cameron. In any case, Ms Blackburn and ESI executed the Deed on 30 May 2018. Even if the agreement in this case fell within the ambit of the third category in Masters v Cameron, the parties would have concluded their bargain by the execution of the Deed.

[78] As I have found that the parties validly entered into and executed the Deed, I am persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss the application on the basis that it has no reasonable prospects of success. 

[79] It is not necessary to consider ESI’s alternative application at [53] that there has not been a dismissal pursuant to s.386(1) of the Act.

[80] ESI’s application to dismiss is granted and Ms Blackburn’s application is dismissed pursuant to s.587(1)(c) of the Act.

COMMISSIONER

Hearing details:

Decision issued on the papers

Final written submissions:

Submissions by the Applicant, Friday, 31 August 2018

Submissions in Reply by the Respondent, 14 September 2018

Printed by authority of the Commonwealth Government Printer

<PR700850>

 1   [2011] FCA 975.

 2   Ibid at [31] – [33].

 3   [2011] FWA 5458.

 4   Ibid at [59].

 5   (1954) 91 CLR 353.