[2011] FWA 5458

Download Word Document



Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Tomas
Symbion Health



Application for unfair dismissal remedy.

[1] Ms Rebecca Tomas was employed by Symbion Pharmacy Services Pty Ltd (the Respondent) from 19 July 2004 until her employment ended on 11 January 2011.

[2] Ms Tomas applied pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that the termination of her employment was unfair. The application was filed on behalf of Ms Tomas by Mr Merric Foley an organiser with the National Union of Workers (NUW).

[3] The Respondent filed a response to Ms Tomas’s application which stated that Ms Tomas had not been dismissed.

[4] A conciliation conference was conducted on 1 March 2011. Mr Foley represented Ms Tomas at the conference.

[5] On 4 March 2011 Ms Tomas advised Fair Work Australia that despite her representative indicating at the conference that terms of settlement were agreed she did not accept the terms of settlement.

[6] On 4 April 2011 Mr Foley filed a notice that he no longer represented Ms Tomas.

[7] On 6 April 2011 the Respondent filed an objection to the application for an unfair dismissal remedy. I note however this document was marked as received by Fair Work Australia on 24 June 2011.

[8] The matter was heard in Brisbane on 12 August 2011. Mr LJ Horsley appeared on behalf of Ms Tomas. Mr Horsley was neither a legal practitioner or paid agent. Mr Ken Brotherson a legal practitioner was given permission to appear for the Respondent.

Evidence of the Respondent

[9] Mr Bruce Hawthorne the State Operations Manager for Queensland gave evidence for the Respondent. 1 Some of his evidence went to matters not relevant to the jurisdictional objection and I have not had regard to those parts of his evidence. Mr Hawthorne was not cross-examined on his evidence.

[10] Mr Hawthorne gave evidence that a lengthy conciliation was conducted on 1 March 2011. At that conciliation, settlement of the claim was discussed. It was his evidence that the terms of settlement agreed between the parties were as follows:

[11] It was Mr Hawthorne’s evidence that the conciliator asked both sides to confirm their agreement to the resolution and this was done. Mr Brotherson advised that a Deed of Release would be supplied to Mr Foley. The conciliator advised that the file would be marked “resolved”. 3

[12] A Deed of Release was forwarded to Mr Foley that afternoon. 4 On 14 March 2011 Ms Tomas sent Mr Hawthorne a letter in which she advised that she had “no intention of signing any deed of release agreeing to terms that end my employment.”5 In that correspondence Ms Tomas stated that she was “of the firm view that I remain a current employee of Symbion despite the recent inconclusive action taken in Fair Work Australia by the National Union of Worker’s on my behalf for unfair dismissal.”6

[13] On 14 March 2011 the Respondent’s lawyers wrote to Ms Tomas and advised her that it was the Respondent’s position that a binding agreement was made on 1 March 2011 and that the Respondent was not prepared to revisit or vary the agreement. They asked that she sign the Deed of Release and attached a copy of the deed.

[14] Ms Tomas did not sign the Deed of Release.

Evidence of Ms Tomas

[15] Ms Tomas gave evidence that she attended the conciliation conference with Mr Foley on 1 March 2011. 7 It was her evidence that she told Mr Foley that she wanted to return to work. She stated that Mr Foley told her that she could not have a friend attend the conciliation conference, that she could not speak during the conciliation conference and she could not leave the room during the conciliation conference.8

[16] Ms Tomas deposed that Mr Foley did not raise in the conciliation conference her most important points namely her employer’s unfairness in not letting her work and that she was not interested in compensation, she just wanted her job back. 9

[17] Ms Tomas deposed that Mr Foley told her that she would not get her job back and that she should take the money. She deposed that she became upset and left the room where she spoke to her support person. She deposed that she “couldn’t deal with what was happening and Mr Foley conceded the settlement.” 10

[18] She deposed that “it was not an agreement I had reached and against my wishes. I was under verbal duress throughout the process.” 11

[19] In cross-examination Ms Tomas accepted that Mr Foley was her representative and she stated that she had left things to Mr Foley. 12

[20] Despite her evidence in chief, in cross examination she could not recall much of what occurred in the conciliation. She gave evidence that she concentrated on what Mr Foley was saying and did not pay attention to what was being said by the Respondent or the Conciliator. She accepted that she could hear what was being said by the Conciliator.

[21] Ms Tomas did not at any stage advise either the Conciliator or the Respondent, that Mr Foley was acting contrary to her instructions.

[22] Ms Tomas denied ever seeing the Deed of Release until the documents were filed for this hearing. 13

Submissions of the Respondent

[23] The Respondent submitted that the application should be dismissed because it is frivolous or vexatious or has no reasonable prospects of success. 14

[24] The primary grounds relied upon by the Respondent was that there was a binding agreement between the parties made on 1 March 2011 which the Respondent is prepared to honour. The Respondent submitted that the agreement was of the kind described as category 1 in Masters v Cameron. 15

[25] The Respondent submitted that Mr Foley was Ms Tomas’s authorised representative and he made the agreement on her behalf. It was submitted that Ms Tomas’s grievance with Mr Foley does not permit Ms Tomas to dishonour the terms of settlement. 16

[26] The Respondent submitted that the continued pursuit of this matter is an abuse of process and it is in the public interest that terms of settlement be honoured. 17

Submissions of Tomas

[27] Ms Tomas submitted that section 587(2) prevented Fair Work Australia from dismissing her application on the grounds that it was frivolous or vexatious or had no reasonable prospects of success. 18

[28] Ms Tomas submitted that she had not been provided with a copy of her application and she was “currently unaware of whether it was formally drafted in terms indicating that section 365 applies to her dismissal.” She submitted that if it did not, she should be permitted to amend her application.

[29] Ms Tomas submitted that evidence of the settlement could not be put before Fair Work Australia. 19 Further it was submitted that no genuine settlement was reached.20

[30] It was submitted that as the Deed of Release was not signed by Ms Tomas there was no binding agreement. It was submitted that as Mr Foley did not follow Ms Tomas’s instructions he did not have her authority to conduct the negotiations on her behalf as he did at the conciliation conference. 21 It was further submitted that the matters in dispute remain unresolved.22


[31] The submissions of Ms Tomas about section 587(2) are misconceived as the application before Fair Work Australia is not an application under section 365 or 773. Further such an application, if made now, would be out of time. Further, section 725 of the FW Act would prevent such an application being made unless this application was first withdrawn.

[32] I do not accept the submissions of Ms Tomas that evidence of what occurred at the conciliation conference is not admissible.

[33] While Fair Work Australia is not bound by the rules of evidence, they provide a useful guide to the admission of such evidence.

[34] Section 113 of the Evidence Act 1995 (Cth) provides as follows:

[35] Clearly this hearing is one in which the making of an agreement is in issue and evidence of the agreement can be adduced.

[36] I do not accept the submissions that no genuine agreement was reached at the conciliation. I do not accept that Mr Foley was not authorised to represent Ms Tomas.

[37] Mr Foley was Ms Tomas’s representative. He had her authority to appear for her. If at any time he was not complying with her instructions, she could have withdrawn that authority. Further at any time during the conference she could have advised the Conciliator or the Respondent that she did not agree with what Mr Foley was saying. I do not accept that because Ms Tomas was told not to speak at the conference that she was not able, in circumstances where if, as she alleges, an agreement was made without her consent, to speak.

[38] I did not find Ms Tomas’s evidence about what occurred in the conference convincing. Her memory of what was said was limited. She only seemed to recall those elements of the conference which supported her submissions. Further Mr Hawthorne’s evidence that the Conciliator confirmed with the parties the terms of settlement at the conclusion of the conference was uncontested.

[39] Ms Tomas called no evidence to support her claim that Mr Foley did not follow her instructions. In her statement she alleged that, at one point, she left the room and told her support person that Mr Foley was not listening to her, yet she did not call this person to give evidence for her.

[40] Ms Tomas gave evidence that she had not been given a copy of the deed by Mr Foley, yet in her evidence she stated that “a deed was prepared requiring my signature but I refused to sign.” 23 She also referred to the deed of settlement in her correspondence to Mr Hawthorne dated 14 March 2011.24

[41] Further despite this denial, after the hearing, Ms Tomas forwarded to Fair Work Australia an email from Mr Foley to her dated 2 March 2011, which attached the deed and explained the content of the deed. This document had clearly been in Ms Tomas’s possession the entire time and directly contradicts her sworn evidence that she had never seen the deed. I do not accept Ms Tomas’s subsequent submission that this document is evidence that there was no agreement.

[42] In her letter dated 14 March 2011 to Mr Hawthorne Ms Tomas did not assert that she had been pressured to make an agreement on 1 March 2011 nor did she allege that Mr Foley had acted contrary to her instructions. In her advice to Fair Work Australia of 4 March 2011 she acknowledged that Mr Foley indicated acceptance of the agreement and she did not allege in that document that she had been pressured to make an agreement or that Mr Foley had acted contrary to her instructions.

Was there a binding agreement to settle the matter?

[43] The remaining issue is whether a binding agreement was made on 1 March 2011. I do not accept that because the agreement made on 1 March 2011 was not signed by Ms Tomas she was not bound by the agreement. There is no legislative requirement or principle of contract law that says that because the agreement made on the 1 March 2011 was not signed it is not enforceable.

[44] In Masters v Cameron  25 the High Court held that when parties reach agreement on terms of a contractual nature and agree that the negotiations will be dealt with by a formal contract, that the case may belong to any of three classes:

[45] In the first two classes the High Court held that there was a binding contract.

[46] I find in this case that the parties made an agreement as described by the High Court in example (2) above. The parties intended and did settle Ms Tomas’s claim for unfair dismissal at the conciliation conference on the terms described by the Respondent.

[47] I do not accept Ms Tomas’s submissions that Mr Foley exceeded his authority. Ms Tomas admitted in cross examination that she left things to Mr Foley. I do not accept that Ms Tomas suffered duress during the conciliation conference. There was no evidence that Ms Tomas suffered any disability which would have prevented her from advising the conciliator and the Respondent that she did not consent to the agreement. She did not at any time during the conciliation conference give any indication to the conciliator or the Respondent that she did not agree to the terms of settlement.

[48] In this matter the Respondent has indicated that it is willing to abide by its obligations under the agreement.

Does Fair Work Australia have the power to dismiss an application in these circumstances?

The Legislative Framework

[49] Section 587 of the FW Act provides that Fair Work Australia may dismiss an application:

[50] In Gorman v Australia Post 27 a Full Bench upheld an appeal against the decision of Senior Deputy President O’Callaghan who had dismissed an application pursuant to section 587(1)(b) as he had found that there was a binding agreement between the parties. The Full Bench held that the focus of section 587(1)(b) was the application:

[51] Consistent with this authority and on the material before me I am unable to conclude that Ms Tomas’s application is frivolous or vexatious.

[52] Section 587(1)(c) allows for the dismissal of a matter which has no reasonable prospects of success. It is clear that whether a case has no reasonable prospects of success can be determined either at the time the application is made or at any time prior to the finalisation of the application.

[53] The Full Bench in Zoiti-Licastro v Australian Taxation Office  28 considered the power of the Australian Industrial Relations Commission to dismiss a matter when there is a binding agreement. This reasoning is relevant even though the legislation under consideration in that matter was significantly different to the FW Act.

[54] In that matter the Full Bench held as follows:

[55] While the Full Bench referred to an executed settlement agreement the reasoning applies where there is an agreement of the kind found to exist here. Once the settlement agreement is made there is no reasonable prospect that the case can succeed as the agreement is a complete answer to the claim.

[56] In any event it is not necessary to determine if this application had no reasonable prospects of success.

[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees30 Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity31, good conscience and the merits of the matter.32

[59] In this matter I find that 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.


[60] For the reasons outlined above I find that Ms Tomas entered into a binding settlement of her claim and therefore her application for an unfair dismissal remedy is dismissed.



R Tomas on her own behalf.

B Hawthorne for the Respondent.

Hearing details:



August 12.

 1   Exhibit S1

 2   Ibid at [17]

 3   Ibid at [18]-[20]

 4   Ibid at Attachment A

 5   Ibid at Attachment B

 6   Ibid

 7   Exhibit A2

 8   Ibid at [12]

 9   Ibid at [14]

 10   Ibid at [15]

 11   Ibid at [16]

 12   Transcript PN 210

 13   Transcript PN 186/187

 14   Exhibit S 2

 15   (1954) 91 CLR 353

 16   Exhibit S2 at [28]

 17   Ibid at [13]-[14]

 18   Exhibit A3 at [11]

 19   Exhibit A3 at [15]

 20   Ibid at [16]

 21   Ibid at [17]

 22   Ibid at [17]

 23   Exhibit A1

 24   Ibid at E

 25   91 CLR 353

 26   Ibid at 360

 27   [2010] FWAFB 9413

 28   PR967544

 29   Ibid at [20]

 30   Section 381(2)

 31   Section 577(a)

 32   Section 578(b)

Printed by authority of the Commonwealth Government Printer

<Price code C, PR513502>