Fair Work Act 2009

s 394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - parties have reached a binding agreement - no reasonable prospects of success - section 587 - application dismissed

• [1] This decision concerns Mr Brandon Papalia's unfair dismissal application against Selected Civil Pty Ltd.

• [2] On Friday 4 July 2025, the parties attended a Member-Assisted Conciliation for this matter. The parties reached a verbal agreement to settle Mr Papalia's application. Mr Papalia signed a deed of settlement on 7 July 2025. Selected Civil signed the deed on 9 July 2025.

• [3] On 17 July 2025, Mr Papalia confirmed via email that Selected Civil had effectively complied with the operative provisions of the deed.

• [4] On Wednesday 6 August 2025, my Chambers wrote to Mr Papalia asking him to confirm his discontinuance of his application given the matter had settled. Mr Papalia wrote back to say he did not want to discontinue as he was not happy with the outcome.

• [5] On Monday 11 August 2025, my Chambers wrote to the parties to inform them that my preliminary view is that the parties had reached a binding settlement agreement to settle Mr Papalia's unfair dismissal application. Accordingly, I intended to dismiss Mr Papalia's unfair dismissal application pursuant to s 587(1)(c) of the Fair Work Act 2009 (Cth) on the basis his application does not have reasonable prospects of success.

• [6] Mr Papalia was given until Wednesday 13 August 2025 to provide any submissions or if he disagreed with my preliminary view and intended course of action. Selected Civil indicated that they had no comment. As of the date of this decision, Mr Papalia has not submitted any response or made any further contact with the Commission.

• [7] Section 587(1)(c) of the Act relevantly provides that the Commission may dismiss an application if the application has no reasonable prospects of success. This may be done on the Commission's own initiative or on application.

• [8] The principles to be adopted in determining if a binding settlement has been reached can be found in Masters v Cameron[1] and affirmed in Subeg Singh v Sydney Trains.[2]

• [9] However, this matter does not concern a dispute over whether agreement has been reached through a conciliation conference or through a series of exchanges. Both parties have exchanged signed counterparts of the deed of settlement. The parties have reached binding settlement.

• [10] In Gorman,[3] Besanko J said at [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.

• [11] That is, in reaching agreement to settle Mr Papalia's unfair dismissal application (the accord and satisfaction), the settlement agreement has brought the unfair dismissal application to an end.

• [12] In these circumstances, I am satisfied that Mr Papalia's unfair dismissal application has no reasonable prospects of success.

• [13] I order that Mr Papalia's application filed under s 394 of the Act be dismissed.

[1] [1954] HCA 72; (1954) 91 CLR 353.

[2] [2017] FWCFB 4562.

[3] Australian Postal Corporation v Gorman [2011] FCA 975.

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