[2014] FWC 7854


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mrs Kristee Heyden
Maa Ambe Group Pty Ltd ATF Maa Ambe Unit Trust T/A Red Rooster



Application for relief from unfair dismissal.

Summary: whether application for relief under s. 394 on foot owing to purported settlement at conference - terms of settlement - whether any conditionality- state of mind of Applicant - whether duress or confusion - discussion of authorities

[1] In this matter, Ms Kristee Heyden is seeking to press her application for relief under s.394 of the Fair Work Act 2009 (“the Act”) in relation to the termination of her employment by Maa Ambe Group Pty Ltd ATF Maa Ambe Unit Trust T/A Red Rooster (‘the employer’).

[2] However, the employer contends that the Applicant is barred from seeking that relief for reason of the operation of an agreement entered into by the Applicant and the employer following a conciliation conference conducted on 26 August 2014.

[3] The correspondence from the conciliator to the parties dated on September 2014 relevantly provided as follows:

[4] The correspondence from the conciliator does not indicate there was any conditionality in relation to the agreement that had been reached in that the conference.

[5] The terms of the settlement themselves do not include any conditionality in relation to the agreement that had been reached at the conciliation conference, either.

[6] The Applicant’s correspondence with the Commission on 26 September 2014 indicated that she was seeking to reopen her unfair dismissal application.

[7] In that correspondence to the Commission the Applicant stated:

[8] On Sunday, 2 November 2014, the Applicant provided further correspondence upon the matter being allocated to me. That correspondence read relevantly as follows:

[9] The Applicant went on to explain that some 2 to 3 weeks after the telephone conciliation, she was in receipt of some further evidence from her work colleagues that supported her contention that she had been unfairly dismissed.

[10] The Applicant’s claims in the course of the hearing conducted in relation to this matter reflected her statements recorded above. She believed at the time of the conference that she "can't do anything about it"; "didn't think I could go any further"; had a "lack of evidence" and had taken into account "the cost of continuing".

[11] The Applicant claimed that in respect of the settlement, she "did agree to it as I didn't feel I could go any further than I could". The Applicant also claimed that she felt "kind of bizarre about it", referring to the settlement, and was “stressed”.

[12] This is not a matter in which there is any evidence of any substantive kind that the Applicant entered into an agreement unwittingly or under duress.

[13] The Applicant’s own commentary on her state of mind indicated that she weighed up the evidentiary case as it was at the time of the conciliation conference, along with the wider commercial circumstances of continuing, and entered into an agreement to resolve the matter given that context.

[14] That is, the Applicant’s evidence does not demonstrate a lack of awareness or the existence of any duress, quite the contrary (on the Applicant's own evidence).

[15] The fact that the Applicant reached a view some 2 to 3 weeks later that she may have a stronger evidentiary case than she believed, does not lend support to her claim that no agreement was reached at the time of the conciliation conference.

[16] The Applicant was candid in so far as she conceded openly that she had reached an agreement facilitated by the conciliator on 26 August 2014.

[17] Prior to the hearing of this matter I sent substantial correspondence to the Applicant informing her of the authorities in relation to the Applicant’s position to reach agreement but then seek to reopen their claims. The authorities that were referred to are:

[18] Much of what I set out below I communicated to the Applicant prior to the hearing. That information remains salient for the purposes of the determination as to whether the Applicant’s case can be reopened or otherwise remains on foot.

[19] The question that I need to determine is whether in the circumstances of this case, because an agreement settlement in relation to an unfair dismissal application had not been executed or signed, there had been no agreement to settle the matter.

[20] In a decision of the Commission by a single member in McKinnon v Eventide Homes (Stawell) Inc. [2013] FWC 5273, which was upheld on appeal to a Full Bench ([2013] FWCFB 8123), the member concerned dismissed an application under s.394 of the Fair Work Act 2009 (“the Act”) where the Applicant had reached terms of an agreement to settle an application in the course of a conciliation conference, but had subsequently elected not to sign the agreement.

[21] The circumstances of the case appear to be similar to those which have arisen in this matter.

[22] The Respondent's case in that instance was as follows:

[23] The Respondent's case was accepted and, as mentioned above, subsequently upheld by a Full Bench of the Commission.

[24] The single member found as follows:

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

[47] The principles in Masters v Cameron provide clear guidance as to the status of any agreement reached in conciliation and are applicable in determining this matter. Ms McKinnon suggests the decision can be ignored. To ignore established legal authority is not appropriate and would lead to uncertainty in decision making by the Commission. There are well established public policy reasons relating to sound administration and consistency in decision making that determine the applicability of the reasoning in Masters v Cameron and in other relevant decisions of the Courts and this Commission to this matter.

[48] The question of whether or not there was a binding agreement reached between the parties is a matter of fact. Even though the Applicant did not sign the agreement arising from conciliation this does not mean that a binding agreement was not reached. The question to be determined is if any agreement of the types described in Masters v Cameron was reached between the parties in conciliation. If the agreement reached is of the first or second category it would, following Masters v Cameron, be a binding agreement.

[49] I am satisfied that an agreement was reached in conciliation and that the agreement reached falls into the first category described in Masters v Cameron. Ms Blakey says an agreement was reached. The Applicant says an agreement was reached but says it was an agreement in principle only and that this is evidenced by the terms of the agreement not being read out. In either scenario it is clear agreement was reached.

[50] That the precise terms of the agreement were not read out during the conciliation conference or that it was not ultimately signed does not mean an agreement was not reached. I am satisfied that the terms were agreed, that the parties intended to be bound by those terms and that the parties intended that those terms be formalised in a form ‘more precise but not different in effect’ to those discussed.

[51] In Zoiti-Licastro it was argued that there were terms included in the final agreement that had not been specifically dealt with in the conciliation discussion.

[52] The relevant facts in Zoiti-Licastro are set out in paragraph 4 of that decision:

[53] Whilst finding that the terms included in the written agreement that were not discussed went to mutual releases and confidentiality, the Full Bench found that:

[54] The circumstances in this case are not substantially different to those of Zoiti- Licastro. On the basis of the principles in Zoiti-Licastro it can be concluded that the failure to read out, during conciliation, the precise wording of the terms of the agreement reached between the parties does not mean that a concluded agreement was not reached. Concentration on the words of the agreement ‘miss the point.’ On the evidence before me nothing was said in conciliation of this application that suggests the agreement was conditional in any sense.

[55] My conclusion that an agreement was reached in conciliation is further supported both by the drafting of a document titled ‘Terms of Settlement’ by the conciliator and by Mr Burdess, on 15 March 2013, confirming receipt of agreement document and advising Mr Catanese that he would make arrangements for the Applicant to sign it. Both of these events lend substantial weight to the conclusion I have reached that a concluded agreement was made.

[56] Even if, as the Applicant says, the agreement was one in principle as opposed to a final agreement there is no evidence as to what other matters were to be resolved or were to be subject to further negotiation before the agreement would be considered final. Whilst I acknowledge that the Applicant wanted her job back I accept the evidence of Ms Blakey that this was rejected as an option early in the conciliation and the discussion then turned to the terms of settlement finally agreed.

[57] I am satisfied on the basis of the evidence of Ms Blakey and the Applicant that it was discussed and agreed in the conciliation that the payment to be made to the Applicant would be eight weeks’ pay. It was also discussed and agreed that the Applicant would be given an opportunity to resign, and the Applicant would receive a statement of service. That the exact amount to be paid was not specified does not detract from my finding that an agreement was reached.

[58] The Applicant also suggests that the question of whether her dismissal was harsh, unjust or unreasonable was never discussed. Whilst she does not explicitly say so, I infer that this is another reason she says the agreement was in principle and not final. If this is the case the Applicant misunderstands the purpose of the conciliation. The conciliation is not to determine if the dismissal of the Applicant was harsh, unjust or unreasonable (such a finding could only be made after a hearing of the application) but rather to explore if there is a possibility of a mutually satisfactory settlement to the matters between the parties without having to go to a formal hearing. It was not necessary that the conciliator determine if the dismissal was harsh, unjust or unreasonable and it certainly was not necessary in the context of reaching an agreement to settle the claim between the parties.

[59] There is, therefore, no evidence on which I could conclude that the parties did not intend to be bound by the agreement in conciliation.

[25] The Full Bench, on appeal of the Member’s decision, concluded as follows in relation to the Member’s findings:

[26] On the basis of this reasoning, the Applicant’s case here has no foundation. The Applicant entered into an agreement on particular terms with her employer to settle the claim.

[27] The Applicant reached this agreement in a conference conducted on 26 August 2014, with the assistance of a Fair Work Commission conciliator. The terms of the deed provided for no conditionality of any kind. Further, the circumstances in which the agreement was reached do not indicate that the Applicant entered into an agreement by way of duress or that the judgement in any other respect was impaired.

[28] On the basis of these findings and in the context of the authorities discussed above, the Applicant cannot proceed with her application for relief under s. 394 of the Act. The agreement as entered into for purposes of the settlement of the application is a complete answer to the claims. The application under s. 394 of the Act is therefore dismissed.

w seal FWC



Ms K Heyden for the Applicant

Ms B Patel for the Respondent

Hearing details:


5 November.


Final written submissions:

2 November 2014.

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