Adrian Siegfried & Ors v Temple Christian College Incorporated T/A Temple Christian College, Marcel Rijken [2025] SAET 108

1. Following their dismissals, Mr Siegfried and Mr Treloar both filed applications seeking remedy for unfair dismissal in the Fair Work Commission ('FWC'). Both unfair dismissal applications were resolved by agreement at a telephone conciliation conference in the FWC on 24 March 2022, when the applicants each signed documents entitled "Terms of Settlement". The terms of these documents are identical but for the amount the College agreed to pay to each of them.
2. The respondents have applied for the current penalty applications to be struck out on the grounds that cl 3.5 of the Terms of Settlement provides that the applicants released the College and any of its employees from liability arising out of or connected with their employment with the College, which would include this application for penalties.
3. The applicants have opposed the strike out applications on the grounds that the Terms of Settlement were never signed on behalf the College and so were not executed; and that the release in cl 3.5 was conditional on the College complying with cl 3.4, which they allege it did not do. Consequently they say, the release is not effective and they should be allowed a hearing on their case.

1. This Court has jurisdiction to hear the penalties claim as an eligible state court, pursuant ss 12, 539 and 546 of the FW Act and reg 1.05 of the Fair Work Regulations 2009.
2. The power to make the orders sought by the respondents is provided by s 41 of the SAET Act:

41 - Frivolous, vexatious or improper proceedings

(1) This section applies if the Tribunal believes that a proceeding -

(a) is frivolous, vexatious, misconceived or lacking in substance or involves a trivial matter or amount; or

(2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and may make any related or ancillary order.

(3) The Tribunal may act under subsection (2) on the application of a party or on its own initiative.

(4) If a proceeding is dismissed or struck out under this section, another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a Presidential member.

1. As can be seen from the wording of this provision, the power is discretionary.
2. The respondents submitted that the Court would exercise this power where a matter should not be allowed to go to hearing because it is apparent that it must fail;[3] and that a proceeding is vexatious where it is unsupportable in law or groundless.[4] This is a reference to the common law test.
3. Judicial guidance has been provided specifically in relation to the application of s 41 in of the SAET Act, which is a statutory power.
4. The onus is on the respondent as the party bringing the application that the case is appropriate to dismiss.[5] This involves a practical assessment as to whether the applicant has a 'real, as opposed to merely fanciful, prospects of success', or whether their claim is 'so uncertain that it would be an abuse of process of the Court to allow the action to go forward'.[6] Where there is found to be a real question of either fact or law to be determined, or at least 'some basis to think that [the] case could possibly succeed', then an applicant is entitled to pursue their claim and have their day in court.[7] There must be a high degree of certainty about the outcome of a proceeding for it to be appropriately struck out or dismissed; it is not sufficient for the court to merely conclude, without more, that the applicant has poor prospects of success.[8] As such, the bar is high.
5. As noted by the Full Court of the Federal Court, the onus of establishing an abuse of process is on the person alleging it and it is a heavy one, noting also that relitigating proceedings that have been finalised constitutes an abuse and that this can extend to proceedings that have been discontinued.[9]
6. However, "if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issue making a trial necessary"[10].

1. The strike out applications were each supported by an affidavit of Daria McLachlan, solicitor for the respondents dated 26 November 2024, deposing to her instructions that the Terms of Settlement recorded the agreement between the applicants and the College to settle their unfair dismissal claims. These affidavits were relevantly identical, and attached a copy each of the Terms of Settlement documents that her clients rely on.
2. When I listed the strike out application for hearing, I made orders for the applicants to file any affidavits of evidence upon which they sought to rely and for the respondents to file their evidence in reply.
3. Mr Siegfried and Mr Treloar each filed affidavits dated 13 June 2025.
4. The respondents then filed a further affidavit of Ms McLachlan dated 26 June 2025, again deposing to her instructions and attaching further documents.
5. I pause here to note that the application was for a strike out or summary dismissal of the applications. It was not for a hearing on a preliminary issue. The decision of the respondents not to file direct evidence and to rely on their solicitor deposing to her instructions needs to be viewed in that context. The applicants, being self-represented, did not have that option.
6. All the affidavits were tendered by consent with no witness being required for cross examination. Although no objection was taken to any of the content of the affidavits, I informed the parties that I would disregard statements within them of hearsay, opinion, speculation or argument, and admitted them on that basis. Following the hearing, in the context of leave to the parties to file lists of further authorities, Mr Treloar filed a further affidavit dated 1 August 2025 which was not objected to although its content was limited to argument, and which I admitted on the same basis as those tendered at the hearing.
7. Before considering the evidence and competing arguments, I set out the text of the Terms of Settlement. In each case the reference to Respondent is a reference to the College.

1. The Applicant has made an application to the Fair Work Commission for a remedy alleging the Applicant was protected from unfair dismissal and was unfairly dismissed.
2. The Respondent denies the allegations.
3. The Applicant and the Respondent agree to fully and finally settle the matter on the following basis:

Payment

• 3.1. The Respondent will pay to the Applicant the amount of $[redacted] gross, taxed as applicable, in addition to any other monies previously paid to the Applicant by the Respondent.

• 3.2. The dollar amount specified in these terms of settlement will be paid by the Respondent within 7 days of the Applicant and the Respondent signing these terms of settlement.

• 3.3. The dollar amount specified in these terms of settlement will be paid by the Respondent by electronic funds transfer into the Applicant's nominated financial account.

Statement of service

• 3.4. The Respondent will within 7 days of the Applicant and the Respondent signing these terms of settlement, provide the Applicant with a statement of their service with the Respondent, outlining the Applicant's position, duties and period of service with the Respondent. The Respondent will make no further comment in relation to the Applicant's employment relationship with the Respondent outside that contained in the statement of service.

Release

• 3.5. On the Respondent complying with clauses 3.1 to 3.4 above, the Applicant releases and forever discharges the Respondent, its directors, employees, assignees or successors from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant's employment with the Respondent, including but not limited to the cessation of the employment.

• 3.6. The Respondent releases and forever discharges the Applicant from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant's employment with the Respondent, including but not limited to the cessation of the employment.

• 3.7. Nothing in these terms of settlement affects any claims, suits demands, actions or proceedings the Applicant has or may have under statute, an industrial instrument or common law for a work-related injury, illness, disease or death, or under superannuation legislation.

Confidentiality

• 3.8. The Applicant and the Respondent will keep the provisions of these terms of settlement confidential, provided that the Applicant and the Respondent may disclose provisions to their legal or financial advisors or any other person that by law must be informed of the provisions.

Non Disparagement

• 3.9. Neither the Applicant nor the Respondent will disparage or denigrate the other.

Counterparts

• 3.10. These Terms of Settlement may be executed in counterparts, meaning that the execution will be complete when each party holds a copy of this Terms of Settlement signed by the other party, even though the signatures of both parties do not appear on the same copy.

Notice of Discontinuance

• 3.11. By signing these terms, the Applicant discontinues Fair Work Commission unfair dismissal application [matter number redacted]

1. There followed an execution page of two columns, each containing typing designating the date, signature and name of the party and the name and signature of the witness to the party's signature with space for those details to be written in.
2. I make the observation that the Terms of Settlement appear to be very much in the form of a template provided by the FWC as an aid to the parties to finalise any agreement reached within an unfair dismissal conciliation conference. They are brief and written in plain language to assist ordinary people without legal representation to record their agreements, incorporating terms common in the settlement of unfair dismissal proceedings. They are not comprehensive deeds of settlement legally drafted to encompass a wide range of issues specific to the particular parties.

Failure to execute and complete the Terms of Settlement.

1. In each copy attached to Ms McLachlan's affidavits, on the execution page the date of 24 March 2022 was written in, above the name and signature of Mr Siegfried on the one document and Mr Treloar on the other document, both witnessed by their solicitor Jay Vidanage, while there was no signature or writing in the column for the College.
2. The applicants' evidence was that they had never received the counterpart signed by the College, as required for execution to be complete according to cl 3.10.
3. While Ms McLachlan's evidence was limited to conveying her instructions and attaching documents from the College, this evidence did not address at all the issue of the Terms of Settlement not being executed by the College.
4. Counsel for the respondents confirmed that they were submitting no evidence of the Terms of Settlement ever being signed by the College. He conceded on his clients' behalf that the College had not completed execution in the terms of cl 3.10. There is no time limit expressed in the document for the respondent to sign, only that execution is not complete until it is both signed and a copy provided to the other party.
5. The parties were agreed that the payments referred to in cl 3.1 had been paid on 30 March 2022 to the accounts nominated by the applicants, being the trust account of their legal representative, Old Port Chambers. Clearly this was within seven days of the applicants signing on the day of the conciliation conference, although cl 3.2 stipulated the payment to be made within seven days of both applicant and respondent signing.
6. The timing in cl 3.4 for the respondent to provide the statements of service is the same as for the payment in cl 3.2 - within seven days of both the applicant and the respondent signing the Terms of Settlement. No statements of service were provided at the time the payments were made.
7. Mr Treloar in his affidavit gave evidence that he had requested a statement of service from the College by internal email on 3 December 2021 before his termination took effect, then again via his personal email account on 14 December 2021 after his dismissal on 10 December 2021. Despite a same day response from Ms Cheryl Barnes, Senior HR/Payroll officer, to his 14 December 2021 request, that she had made a note to provide him with a statement of service, none was provided.
8. I mention this aspect of his evidence because the provision of a statement of service upon termination of employment and upon request is an obligation on the College pursuant to cl 24.4 of the Enterprise Agreement. This clause reads:

Upon the termination of employment of an Employee (other than a casual employee) the employer will provide upon the request of the Employee, a statement of service setting out the commencement and cessation dates of employment.

1. Failure to do so is also a contravention of s 50 of the FW Act, which requires compliance with the terms of an Enterprise Agreement, and which is a civil remedy provision attracting pecuniary penalties.[11]
2. Mr Treloar's uncontradicted evidence was that no statement of service was provided in response to his requests in December 2021, by the time of the FWC conciliation conference in March 2022.
3. In her affidavit dated 26 June 2025, Ms McLachlan deposed that she had been instructed by Mr Toshi Umehara on behalf of the College that it was unable to locate any evidence of the statements of service being issued to the applicants in 2022.
4. By Mr Treloar's evidence, on 6 December 2024, he received an email from solicitors for the respondents saying "We are instructed that it is our client's belief that these were sent to your legal representative in March 2022" and attaching a copy of a statement of service dated 30 March 2022 that he said was not accurate.
5. Clause 3.5 makes the release by the applicants conditional on the respondent complying with cls 3.1 to 3.4 inclusive.
6. As can be seen from cl 3.11 of the Terms of Settlement, which appears under the heading Notice of Discontinuance, the FWC proceedings were immediately discontinued by signature of only the applicants. Nothing more was required for that to be effective, not even a signature on behalf of the College.

1. As noted above, the discretion to strike out or summarily dismiss a proceeding is to be used only where it is apparent that a matter should not be allowed to go to hearing because it must fail.
2. The strike out application by the respondents relied on the Terms of Settlement providing them with a release by the applicants from proceedings of this kind. The fact of an agreement in writing to settle earlier proceedings which includes a release from future proceedings, establishes a prima facie case for summary dismissal or strike out.
3. The question then is whether the applicants have met the onus to point to some factual or evidentiary issue making a trial necessary.
4. There is a separate issue in relation to abuse of process which is, leaving aside the status of the Terms of Settlement, whether by the penalty application the applicants are seeking re-litigate a matter that has already been litigated.
5. The matter already litigated and settled was an application to the FWC for a remedy for unfair dismissal. It was not an application for the imposition of a penalty for breach of the Enterprise Agreement. The FWC does not have jurisdiction to hear such matters. This Court does. The same factual substrata can give rise to different actions for different remedies. An application for remedy for unfair dismissal is a separate claim and a different jurisdiction to a claim for payment of entitlements or an application for the imposition of penalties pursuant to the FW Act. Both can be pursued concurrently or sequentially.
6. Absent an effective release from further claims in relation to the employment, there is no bar to the applicants pursuing applications for the payment of an amount owed pursuant to an Enterprise Agreement or to an application for the imposition of penalties for breach of the Enterprise Agreement and consequent contravention of a civil penalty provision. These matters were not the subject of the proceedings in the FWC.
7. Consequently, the strike out application depends on whether it is beyond argument that the agreement reached between the parties in the settlement of the unfair dismissal claim includes a currently binding obligation on the applicants to release the respondents from a claim of this kind.
8. Absent execution and completion of the Terms of Settlement it is arguable that the document served only as a Notice of Discontinuance in the context of a verbal agreement to settle the unfair dismissal claims.

1. In the course of the hearing, counsel for the respondents conceded that the Terms of Settlement had never been executed and that the release upon which his clients sought to rely was conditional on the College providing the statements of service referred to in cl 3.4.
2. He argued that the agreement entered into in settlement of the unfair dismissal was that recorded in the Terms of Settlement, was contractual and that common law contractual principles applied.
3. He argued that the parties were bound in contract by the agreements that they had made to settle the unfair dismissal claims. The failure to execute the Terms of Settlement was of no significance as the College had confirmed its consent to the agreement reached between the parties in the FWC conciliation conference by paying the amount recorded in cl 3.1 within seven days of it being agreed.
4. In relation to the failure to provide the statements of service soon after, he argued that the Terms of Settlement did not make timing of the essence and so it was irrelevant that the statements of service were not provided within seven days of the applicants signing the Terms of Settlement. If not of the essence he said it would not matter whether they were provided after eight days or at some much later time. He relied on his instructions that there had been no notice received by his clients from either of the applicants about the statements of service not being provided in a timely manner. Thus, he argued, the contractual condition for release became effective on 6 December 2024 when the copies of the statements of service were eventually provided.
5. While that contractual condition had not been complied with at the time the applicants filed their penalty application, the argument went that the effect of the release then later becoming effective prevented the applicants from continuing with their application and they were contractually obliged to withdraw it.
6. Consequently, he argued, the applicants could not continue to claim the benefit of the payment and the statements of service while denying the respondent the release to which they had agreed. To deny the release was to allege recission of the contract when there were no grounds to do so and no steps had been taken by the applicants to rescind the contracts. He maintained that if the contracts had been breached by his client, the remedy was to be found in an action for damages, not a denial of the release.
7. The applicants argued that they understood the Terms of Settlement to mean what they said, that they had to be executed and complied with to be binding. They had not been. Mr Treloar argued that the copy of the statement of service supplied to him on 6 December 2024, but dated 24 March 2022 was "too little too late" to be of any value and anyway still did not comply with the Terms of Settlement as it was not accurate.

1. What these arguments do is move beyond the actual Terms of Settlement documents and raise issues about whether, regardless of the lack of execution or compliance by the College, there were binding contracts between it and the applicants, what the agreed terms were, including consequences of failure or delay by a party to comply with those terms, and whether that is sufficient to preclude the applicants from pursuing their penalties application.
2. They also raise the issue of whether, as a matter of law and public policy, agreements reached between employers and employees in settlement of their disputes pursuant to the FW Act are subject to the same common law contractual principles that apply to commercial contracts or whether they are to be considered any differently by reference to employment contractual relationships subject to the provisions of the FW Act.
3. Had the Terms of Settlement been executed and their terms complied with by the College, the conditions for the release in cl 3.5 would unarguably have been met. However, that is not what has happened.
4. The question for a summary dismissal is whether there are factual or evidentiary issues that require further hearing. Absent execution of the Terms of Settlement, the documents themselves cannot be relied upon to decide the relevant questions. The content and status of the agreement between the parties falls to be determined by evidence of their conduct in the formation of the agreement and subsequently.
5. In the absence of direct evidence from a relevant party, it might be possible that the issue could be determined on agreed or uncontested facts.
6. In this matter though, the agreed and uncontested facts do not answer the question of whether the respondents are entitled to the release that they claim.
7. There has been no explanation from the College for why it did not execute the Terms of Settlement or attend to the timely provision of the statements of service. Their counsel suggested to me that I should infer an explanation of administrative oversight. I am unable to do that. In the absence of evidence it would be just as speculative as inferring that it was intentional.
8. Where issues of entitlement and obligation are to be determined by reference to the conduct of the parties, relevant evidence may include not only what actions were or were not taken, but also why. In an organisation, whether particular action or inaction is the result of a deliberate decision by a person with authority or by administrative error may be relevant to how that conduct is viewed by a court. Where a belief is relied upon, it would be relevant who held the belief and whether that belief was reasonable in the circumstances.
9. Counsel for the respondent raised the issue of why, if the timing of the provision of statements of service was important to the applicants, they did not follow up on them. In the event of administrative oversight, the College would have been alerted to its error and had the opportunity to rectify it.
10. He argued that the applicants could not simply sit back and seek to rely on non-compliance by the College without putting it on notice.
11. Whether the conduct of the applicants in all the circumstances could be characterised that way depends on evidence about what they did or did not do in relation to that issue and why. Also, at issue as a matter of fact is whether any follow up they did attempt reached the College. Mr Treloar has deposed that he did raise the issue with his solicitor and was told that it was followed up. There was no evidence from Mr Siegfried on that issue.
12. It is also a matter for argument then about the importance of the content and timing in the provision of the statements of service.
13. The purpose of providing an employee with a statement of service following a termination of employment, for whatever reason, is to assist their transition to new employment by providing a verification of their employment history that they can present to a prospective new employer. That is the benefit of a statement of service - assisting with transition to new employment.
14. In relation to employment disputes and their settlement, the argument put by counsel for the respondents that time was not of the essence in the provision of the statements of service requires consideration of that context. There is no time limit in cl 24.4 of the Enterprise Agreement for the provision of a requested statement of service. That means it must be within a reasonable time given its purpose, or the College would be considered in breach.
15. It is arguable that an agreement to provide a statement of service as a term of settlement of an unfair dismissal claim should be assessed by the same criteria. Whether or not it should be in a particular case may depend on evidence.

1. The criteria for strike out or summary dismissal of the application for penalties in reliance on the Terms of Settlement signed by the applicants on 24 March 2022 have not been met.
2. Those documents were not signed by the College and so were not executed. They were effective as Notices of Discontinuance of the applicants' unfair dismissal proceedings in the FWC but their status beyond that would require consideration of further evidence about the conduct of the parties.
3. The argument that the Terms of Settlement nonetheless reflected the College's agreement to their terms, were confirmed and completed by the conduct of the College such as to entitle it to the benefits expressed therein would require supporting evidence from it.
4. Whether any conduct by the applicants was such as to prevent them from relying on failures or errors by the College to avoid providing the release referred to in cl 3.5 of the Terms of Settlement also would require further evidence.
5. There would also need to be the opportunity for the parties to make submissions on such evidence.
6. These are matters which could be determined as a preliminary issue, but are not amenable to determination on a summary dismissal or strike out application.

1. The application dated 26 November 2024 by the respondents seeking orders to strike out or summarily dismiss the application by Mr Siegfried and Mr Treloar for the imposition of penalties is refused.

[1] Applications for Directions filed 26 November 2024.

[2] R1 & R2, Supporting Affidavits of Daria McLachlan dated 26 November 2024 at [5].

[3] Respondent outline at [5] citing Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598.

[4] Ibid at [6] citing Dey v Victorian Co Railways Cmrs (1949) 78 CLR 62, 91.

[5] Harradine v Chief Executive for the Department for Education [2020] SAET 38 [53]

[6] Pearson v Supporting Care Pty Ltd and Ors [2025] SAET 55 [15], citing Hatchard & Ors v Chief Executive, Attorney General's Department (South Australian Metropolitan Fire Service) [2024] SAET 69 [42]-[43].

[7] Reilly v Return to Work SA [2018] SAET 7 [37]-[39] ('Reilly'); Marchenko v South Australia Police [2020] SAET 168 [37]-[39] ('Marchenko'); Rogers v Thiess Pty Ltd & Return to Work Corporation of South Australia [2021] SAET 108 ('Rogers') [40], [43]-[44].

[8] Reilly (n 7) [38]; Marchenko (n 7) [40]; Rogers (n 7) [43]-[44].

[9] Scott v Steritech Pty Ltd [2025] FCFCA 110 at [12] endorsing the approach of the primary judge in Scott v Steritech Ptd Ltd [2023] FCA 1401

[10] Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [29f] as cited in Scott v Steritech [2025] FCFCA 110.