s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application to dismiss pursuant to s.587 - parties had executed release agreement- application to dismiss pursuant to s.399A - parties had executed release agreement and failure to comply with directions- signed release agreement - application has no reasonable prospects of success - application for an unfair dismissal remedy dismissed

• [1] This decision concerns an application made under s.399A and/or s.587 of the Fair Work Act 2009 (the Act) by Insulect Australia Pty Ltd (the Respondent) to dismiss an unfair dismissal application brought against it by Mr Amit Singh (the Applicant/Singh).

• [2] On 17 December 2024, Mr Singh made an application to the Fair Work Commission under s.394 of the Act for a remedy, alleging that he had been unfairly dismissed from his employment with the Respondent. On 7 January 2025 the Respondent filed its response by way of a Form F3. In that response the Respondent raised a concern that the Applicant had entered into a legally binding settlement agreement that precluded Mr Singh from commencing or maintaining this proceeding.

• [3] Following various failures on the part of the Applicant to comply with directions the Respondent filed an application to dismiss Mr Singh's application. The Respondent's application relies on Mr Singh's repeated failure to comply with the Commission's directions and also that he has entered into a binding release agreement. The power to dismiss the original application may arise by virtue of s.399A or s.587 of the Act. The dismissal is pursued under either s.399A(1)(b) or (c) or s.587(1)(b) or (c) of the Act.

• [4] In response Mr Singh submits that he did comply with the directions of the Commission and, essentially, that he was pressured into signing the release agreement in circumstances where he was unable to get legal advice.

• [5] For the reasons that follow, the Respondent's application under s.587 is granted and Mr Singh's application for an unfair dismissal remedy is dismissed.

• [6] Mr Singh's application was listed for staff conciliation on 17 January 2025. The matter did not settle and it was subsequently allocated to my Chambers on 11 February 2025.

• [7] On 24 February 2025, the matter was listed for case management conference (mention and directions) on 4 March 2025 by Microsoft Teams and directions were issued by email for the filing and service of outlines of argument and witness statements regarding the jurisdictional objection made by the Respondent, the merits of the application and remedy. The directions also required the parties to confirm their attendance prior to the case management conference by sending an email to Chambers.

• [8] At the case management conference on 4 March 2025, I explained the obligations of the parties to comply with the directions and the nature of the directions, particularly the deadlines for the filing of evidence for each respective party.

• [9] Following the case management conference on 4 March 2025, my Chambers again circulated a copy of the Directions which required the Applicant to file any evidence and an outline of submissions by 10 March 2025. Those directions also stipulated that each party was required to serve one copy of their material on the other party by the required date. The directions included links to resources on the Fair Work Commission website regarding unfair dismissals, template documents to assist in preparing for a hearing or conference and also attached a schedule including an exemplar witness statement.

• [10] On 6 March 2025, Mr Singh was sent an email by my Associate reminding him of his obligation to ensure that he copied in the Respondent to any communication sent to the Commission and advising him of the appropriate course to take should he wish to seek an extension of time to comply with the directions for filing his material.

• [11] On 10 March 2025, the Applicant sent several emails to my Chambers seeking an extension, however it was unclear whether the Applicant was seeking an extension of time to file his evidence and submissions or an extension of time to accept an offer of settlement made by the Respondent. The Respondent was not copied into these emails. On 10 March 2025 my Chambers corresponded with Mr Singh (cc'ing in the Respondent) seeking to clarify his request, asking him to provide reasons for any request and asking him to seek the consent of the Respondent to any request. Mr Singh responded on 11 March 2025. His correspondence focussed on the Respondent's offer of settlement. Mr Singh did not file any evidence or submissions in support of his application by 10 March 2025.

• [12] On 11 March 2025, the Respondent made an application that these proceedings be dismissed, copying in Mr Singh. This application was made in a Form F1 and accompanying Annexure.

• [13] I listed the application of Mr Singh for mention on 13 March 2025. At the mention I discussed with the parties whether I would issue further amended directions and the terms of those directions. I reiterated with Mr Singh the need to comply with directions and advised Mr Singh that I would hear and determine the Respondent's dismissal application if Mr Singh did not comply with further amended directions. The Respondent agreed to temporarily hold off pressing its application to dismiss the proceedings pending compliance with further amended directions and a new compliance listing.

• [14] Following the case management conference on 13 March 2025, my Chambers circulated further amended directions which required the Applicant to file any evidence and an outline of submissions by 24 March 2025. These directions included a direction that the materials were to be filed via email to my Chambers and served by similarly sending them to the other party or their representative_._ A new hearing date was set to determine Mr Singh's substantive application. The application was listed for a case management conference (compliance) on 26 March 2025 to ascertain whether Mr Singh had complied with the 13 March directions.

• [15] On 18 March 2025 Mr Singh filed a copy of his contract, copies of his two final payslips, a remuneration increase letter dated 9 August 2024, several versions of his outline of arguments: merits and several versions of his outline of argument: objections. Mr Singh did not 'cc' in the Respondent to his fourteen separate emails filing these documents, several of which were duplicated. On 18 March 2025, my Associate provided these documents to the Respondent and identified the particular versions of documents which appeared to be intended to be relied upon by the Applicant. My Associate advised Mr Singh that, again, they had failed to include the Respondent in communications with the Commission, and also that they had failed to file their witness statement, outline of submissions on remedy and document list. The Applicant was again reminded to file these documents in line with the amended directions, by 24 March 2025.

• [16] On 23 March 2025, Mr Singh emailed further documents to my Chambers including his remedy submission, payslip from newly gained employment dated February 2025, a screenshot of the release agreement entered into between himself and the Respondent, and several screenshots of jobs Mr Singh had applied for via Seek.com. Mr Singh did not serve these documents on the Respondent by including them in his emails. Mr Singh did not file any witness statements, including his own. On 24 March 2025, my Associate provided these documents to the Respondent and, again reminded the Applicant to include the Respondent in any communications with the Commission.

• [17] On 24 March 2025, at 12:29 pm Mr Singh made an enquiry with my Chambers effectively querying whether he could get witness statements from previous colleagues who had worked with him at the Respondent.

• [18] On 24 March 2025 at 1:59 pm my Associate emailed Mr Singh confirming that he did not need the permission of the Respondent to get witness statements from previous colleagues who had worked with him at the Respondent. Mr Singh was directed to file his own witness statement regarding his own recollections, communications and observations regarding relevant events. Mr Singh was given until 5pm on 25 March 2025 to file any witness statements from previous colleagues or workmates and told that they would not be accepted after this time. Mr Singh did not file any further statements or evidence by 5pm on 25 March 2025.

• [19] On 25 March 2025, the Respondent reinvigorated its application to dismiss these proceedings and filed submissions in support of its application. Those submissions cited the Applicant's alleged unreasonable failures to comply with directions of the Commission as well as his alleged unreasonable failure to discontinue the application after a settlement agreement had been concluded.

• [20] On 26 March 2025, Chambers acknowledged receipt of the Respondent's submissions and witness statement in support of their application for Mr Singh's application to be dismissed and sent these documents to all parties, along with another copy of the amended directions originally circulated on 13 March 2025.

• [21] On 26 March 2025, the parties attended the pre-scheduled compliance check hearing, where the Respondent pressed its application to dismiss these proceedings. I accepted the summary statement of Mr Singh as set out in his Applicant's Outline of Merits filed on 18 March 2025 as his evidence. I explained the Respondent's application to dismiss the proceedings and advised Mr Singh that I would issue directions with a two-week period for him to file evidence and submissions in response to the application made by the Respondent. The Respondent would then have one week to communicate their position in response, before the Respondent's application to dismiss Mr Singh's application would potentially be heard on 22 April 2025. The parties were instructed to advise my Chambers by 17 April 2025 as to their position on whether there was a need for a hearing to be conducted in relation to the Respondent's application to dismiss Mr Singh's application or if the decision could be made on the documents filed. Mr Singh confirmed his understanding.

• [22] On 26 March 2025, following the compliance check mention, I issued further amended directions and a notice of listing for 22 April 2025 in relation to the Respondent's application to dismiss these proceedings. These directions required Mr Singh to file submissions, statement(s) of evidence and a document list in response to the Respondent's application to dismiss these proceedings by 9 April 2025 and the Respondent to file any submissions and/or witness statements on which they intended to rely in support of its application by 17 April 2025.

• [23] On 6 April 2025, Mr Singh filed his own statement which dealt with events leading up to his dismissal, substantive arguments regarding whether he resigned or was forced to resign and also the circumstances leading up to him agreeing to a release agreement (which he referred to as a termination agreement) including that he was unable to get legal advice and was 'forced to accept' the agreement. Mr Singh also submitted a document list, which listed his payslip, work contract, and the release agreement which had been previously filed with the Commission on 18 March 2025 and 23 March 2025.

• [24] The Applicant failed to file any substantive submissions addressing the grounds of the application to dismiss the proceedings. Instead, on 7 April 2025 he wrote to the Commission (not cc'ing in the Respondent) saying that his case should not be dismissed because the Respondent had engaged in unacceptable behaviour towards him prior to his dismissal. Mr Singh did not address the reasons for his failure to comply with directions, nor the signed settlement agreement that had been entered into by the parties prior to his commencing these proceedings.

• [25] On 07 April 2025, the Applicant was again directed to provide documents addressing the Respondent's application to dismiss these proceedings by 9 April 2025. The Applicant filed no substantive submissions in response to the Respondent's application.

• [26] On 22 April 2025, I conducted a hearing regarding the Respondent's application to dismiss these proceedings. Mr Singh gave evidence, and both parties made further oral submissions. Mr Singh represented himself and advised that he had been unable to source legal representation. The Commission had previously organised a referral for Mr Singh to an independent solicitor through the Commission's Workplace Advice Service. Taking into account the complexity of the matter, I formed the view that it would enable the matter to be dealt with more efficiently if I granted permission for the Respondent to be represented and exercised my discretion to do so pursuant to s.596 of the Act.

• [27] At hearing the Respondent made clear that it pressed its application to dismiss these proceedings pursuant to s.399A and/or s.587 of the Act.[1] Following the hearing, permission was granted for both parties to provide further submissions on s.399A and s.587 of the Act. On 22 April 2025, the Respondent filed further submissions arguing that the application could, and should, be dismissed under s.399A or s.587 of the Act. These submissions focussed on the release agreement that the parties had entered into, prior to Mr Singh commencing these proceedings and the Commission's power to dismiss these proceedings. Mr Singh filed further submissions on 24 April 2025. These submissions again focussed on events leading up to his dismissal, that he had felt pressured and confused and signed the release agreement without fully understanding it, that his application was not frivolous or vexatious and that he was seeking compensation, not reinstatement, by way of remedy.

• [28] Section 399A of the Act provides as follows:

1. The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
   1. failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
   2. failed to comply with a direction or order of the FWC relating to the application; or
   3. failed to discontinue the application after a settlement agreement has been concluded.

1. The FWC may exercise its power under subsection (1) on application by the employer.
2. This section does not limit when the FWC may dismiss an application.

• [29] Section 587 of the Act provides as follows:

1. Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
   1. the application is not made in accordance with this Act; or
   2. the application is frivolous or vexatious; or
   3. the application has no reasonable prospects of success.

• [30] The Respondent's application relies on Mr Singh's repeated failure to comply with the Commission's directions and also that he has entered into a binding release agreement and that, accordingly, the application should be dismissed. The power to dismiss the original application may arise by virtue of s.587 or s.399A of the Act. Essentially, the Respondent argues that the application should be dismissed as it is frivolous or has no reasonable prospects of success (s.587) or because the Applicant has failed to comply with directions of the Commission (s.399A(1)(b)) and/or failed to discontinue the application after a settlement agreement has been concluded (s.399A(1)(c)).

• [31] In reaching my conclusions in this matter I have had regard to all of the evidence before me and submissions filed or made at hearing.

• [32] I will first turn to consider s.587 of the Act and the Respondent's argument that the application should be dismissed as it is frivolous or has no reasonable prospects of success as the parties have entered into a release agreement.

• [33] The evidence regarding the events preceding the parties entering into the release agreement were relatively spare. Mr Singh's evidence was that he had made a formal complaint to the Human Resources department about his manager harassing him for taking bathroom breaks. This led to an argument between the Applicant and his manager. This manager continued to provoke the Applicant, which he continued to report to Human Resources. Further arguments between Mr Singh and his manager followed. At least one of these involved the Applicant swearing before leaving the workplace due to feeling uncomfortable. The Applicant had a meeting with Human Resources about this, but received no written summary or indication of how the matter would be addressed. The Applicant was advised not to speak to colleagues about this matter, and understood no investigation took place.

• [34] On 9 December 2024, the Respondent sent Mr Singh a proposed release agreement. The agreement was signed and witnessed by representatives of the Respondent on 9 December 2024.

• [35] On 9 December 2024, Mr Singh requested more time to "take advice from professional it may take up to 2 days". The Respondent granted Mr Singh's request. Mr Singh gave evidence that he was unable to obtain legal advice within the additional two days, that this meant that he was 'forced to sign the agreement' and that he did not fully understand the terms of the release agreement. There is no evidence before me that Mr Singh sought any further time to get legal advice. Ultimately Mr Singh returned the signed and witnessed agreement under cover of the following email (reproduced as written):

"Hi Kelly this is the sign from (sic) that you requested thanks"

• [36] The release agreement contains the following relevant provisions (reproduced as written):

"1. Definitions: the following definitions apply throughout this Agreement.

1.2. Beneficiaries means (a) Insulect; (b) each of its related bodies corporate; and (c) each of the officers and employees of any of them, and Beneficiary means any one of them.

1.3. Benefits means Insulect paying you: (a) a gratuity of $8,892, 5 weeks pay (less tax); and (b) you accrued and untaken annual leave entitlements, if any (less tax) being $2,047.97, and (c) if any, your long service leave entitlements (less tax), and (d) superannuation entitlement of $1,258 totalling $12,198.06.

1.4 Claims: (a) means any and all claims, complains, allegations, suits, actions, disputes, demands, proceedings, applications, liabilities, damages, complaints, requests for investigation, or costs (including the subject of an order), whether known of unknown, that, but for this Agreement, you have, had or may have in the future against any Beneficiary, associated with, arising out of or in any way related to the Employment; and (ii) you making any complaint to, or cooperating with any investigation by, any other person, body or agency in relation to the Employment; and (b) does not mean of include any statutory workers compensation claim you have or any statutory superannuation claim that you may have.

1.5 Employment means any and all aspects of your employment with Insulect and all aspects of your association with any other Beneficiary up to the date of this Agreement, including: (a) termination of your employment; (b) all circumstances leading up to the termination of your employment; (c) any and all benefits; and (d) all Claims in respect of any and all benefits to which you are of may be entitled as a result or in relation to your employment.

3. Benefits and release in return for benefits: You; a) release all Beneficiaries from all Claims (other than your right to receive Benefits otherwise due to you; b) acknowledge that: i) Insulect provides Benefits on a no admissions, without prejudice, confidential basis; ii) you receive the Benefits in full and final settlement of all Claims and as valuable consideration for entering into this Agreement; and iii) and Beneficiary may rely on, and enforce this Agreement, as a complete bar to all Claims, as if it had signed this agreement.

6. General: You agree, for the benefits of all Beneficiaries, that: (a) this is the entire Agreement, which replaces all earlier agreements, and it may be executed in counter-parts that can be exchanged via email, so that two signed counter-parts exchanged in this way constitute the Agreement; (b) if a Court declares and part of this agreement invalid or unenforceable, that part of the agreement will be read down so that it is enforceable and if that is not possible, it will be severed and the rest of the agreement will continue to operate.; (d) anything in this agreement can be done by a Party's legal representative and a Party's legal representative performing and obligation under this Agreement will considered performance to that obligation by the Party; and the laws in New South Wales govern this Agreement."

• [37] At hearing Mr Singh gave evidence that he had cc'ed the Respondent into communications (rather than providing any explanation for why he had not complied with the Commission's requirement to include the Respondent in communications to the Commission). Mr Singh gave evidence that he had failed to comply with the directions for the filing and service of his materials as he was working and was not legally represented. He also sought to portray the payments made to him pursuant to the release agreement as his entitlements or 'what was owed to him' but ultimately appeared to change his evidence to the effect that he had received the entitlements due to him under the release agreement. Further to this, Mr Singh filed his final payslip which demonstrated that he had received the payments owing under the release agreement.

• [38] I make the following factual findings in relation to this matter:

1. On 9 December 2024, the Respondent provided Mr Singh with a proposed release agreement;

2. Mr Singh sought an extension of time to sign the release agreement in order to get legal advice;

3. An extension of time was granted in which to consider the release agreement;

4. Mr Singh signed and returned the release agreement to the Respondent;

6. The Respondent met its obligations under the agreement; and

7. Mr Singh has not taken any court action to set the release agreement aside.

• [39] Essentially, the Respondent argues that:

1. Mr Singh executed the release agreement after seeking, and being granted, an extension of time to consider its terms;

2. He received valuable consideration for entering into the Agreement;

3. Payment was conditional on releasing Insulect from all claims;

4. Mr Singh was free to choose whether or not to enter into the Agreement;

a. he recognised the Agreement as a legal document; and

b. he had an opportunity to obtain legal advice from late January 2025; and

c. Mr Singh made a choice about whether to obtain legal advice.

• [40] Under s.587(1)(c), the Commission may dismiss an application before it, if it has no reasonable prospects of success. The Respondent submits that, in the circumstances disclosed by the evidence, the Applicant's case has no reasonable prospects of success as the release agreement bars Mr Singh's application. It says, that accordingly, the application must be dismissed.

• [41] Mr Singh's argument is essentially that he was pressured into signing the release agreement in circumstances where he was unable to get legal advice, had insufficient time to consider its terms and did not fully understand them.

Consideration of s.587 of the Act

• [42] The Commission may dismiss an application if it has no reasonable prospects of success pursuant to s.587(1)(c) of the Act. Having considered the evidence and submissions led by both parties, I have concluded that Mr Singh's application has no reasonable prospects of success. I have further determined that it should be dismissed.

• [43] Whilst I acknowledge that Mr Singh feels that he had no choice but to sign the release agreement, Mr Singh has made no application to a court of competent jurisdiction seeking to set the agreement aside. Further, he requested, and was granted, extra time to consider the release agreement. There is no evidence before me that he sought further time from the Respondent to get advice and consider the release agreement after this extension of time.

• [44] In any event, I do not consider that the Commission has any power to set an agreement aside (nor has Mr Singh asked me to). I note that similar conclusions were reached in Salisbury v Sigmatek Pty Ltd (Sigmatek),[2] where Commissioner Bissett stated:

"Even if I formed the view that the Deed had been signed under duress it is not apparent that the Commission could, in any event, remedy that situation to enable Mr Salisbury's claim for unfair dismissal [to] proceed. An application to set aside a Deed is not a matter to be entertained by the Commission. This is not a matter where the mere existence of an agreement to settle a matter is in dispute. The existence and the terms of the Deed are clear. The Deed has been signed and is legally binding on the parties to it until such time as it is set aside."

• [45] Commissioner Bissett expanded on that reasoning in Thinagaran Segran v Certis Security Australia (Victoria) Pty Ltd T/A BRI Security,[3] as follows:

"If it is claimed that the Applicant was coerced into the agreement (although this does not appear to be put in such terms) it is unclear how the Commission can deal with that. To set aside an agreement reached or to claim the agreement is void are not matters, it would appear to me, within the jurisdiction of the Commission."

• [46] Accordingly, I do not propose to consider whether Mr Singh was subject to any duress or 'forced to sign' the release agreement. In any event, there is insufficient evidence before me to reach such a conclusion.

• [47] In Australian Postal Corporation v Gorman (Gorman),[4] the Federal Court confirmed that pursuant to s.587 of the Act, the Commission may dismiss an unfair dismissal application where a binding settlement agreement exists. In Gorman,[5] Justice Besanko opined as follows:

"[31] 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.

[32] It seems to me that the fact of an accord and satisfaction can either be raised under the Act at an 'interlocutory' stage and at the final hearing or it cannot be raised at all. As it is a complete answer to a claim there would be no reason why it could be raised at a final hearing but not at a preliminary stage under a section such as s 587.

[33] There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, 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."

• [48] In my view, the release agreement is an accord and satisfaction. It releases the Respondent in relation to any claims that Mr Singh may have had 'arising out of or in any way related to his employment with the Respondent' including the termination of employment and the circumstances leading up to that termination. The agreed terms bar Mr Singh from pursuing such a claim. Mr Singh does not dispute that it was signed by all parties. The parties had reached finality in arranging the terms of their bargain and intended to be immediately bound by those terms. The release agreement was complied with by the Respondent. The release agreement is a complete answer to Mr Singh's application. As a result, Mr Singh's cause of action was extinguished and his unfair dismissal application is without reasonable prospects of success, as per the terminology in s.587(1)(c) of the Act.

• [49] Given my conclusions above it is not necessary for me to form a view about whether the application should be dismissed pursuant to s.399A(1)(b) or (c).

• [50] In the circumstances described above, I am empowered to exercise the discretion pursuant to s.587 of the Act to dismiss the substantive unfair dismissal application. While this discretion is to be exercised with caution, I am satisfied that it should be exercised given that the parties have reached a binding settlement agreement which bars Mr Singh from bringing his application. Accordingly, I have determined that Mr Singh's application has no reasonable prospects of success.

• [51] For the reasons given, the Respondent's application to dismiss Mr Singh's application under s.587 of the Act is granted.

• [52] The application for unfair dismissal remedy filed by Mr Singh on 17 December 2024 is dismissed pursuant to s.587 of the Act. An Order to this effect will be issued concurrently with this decision.

Mr Andrew Cardell-Ree, Partner, of Thomson Geer, for the Respondent

[1] Pursuant to s.586, to the extend that it is necessary, I allow an amendment to the Respondent's Form F1 to rely upon s.587 of the Act.

[2] Salisbury v Sigmatek Pty Ltd [2020] FWC 2, [34].

[3] Segran v Certis Security Australia (Victoria) Pty Ltd (T/A BRI Security) [2020] FWC 4192, [37].

[4] Australian Postal Corporation v Gorman [2011] FCA 975; 196 FCR 126; 211 IR 450.

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