Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal.

[1] On 16 December 2020, Mr Chris AKA Christopher Lawless filed a s.365 application alleging that he was dismissed by the Australasian Association of Philosophy AKA the AAP in breach of the general protection provisions of the Fair Work Act 2009 (the Act).

[2] On 7 January 2021, Ms Erin Lynch on behalf of the Australasian Association of Philosophy (AAP) filed a Form F8A Employer Response which identified two jurisdictional objections, the first being that the Applicant had not been dismissed, and a further objection that the Application was estopped as a result of a settlement agreement. I have corrected the Respondent's name on the application to Australasian Association of Philosophy using my powers under s.586 of the Act.

[3] The matter was allocated to my Chambers on 16 February 2021.

[4] A conference was conducted on 19 February 2021. On 22 February 2021, I issued directions for the filing of material and the conduct of a hearing on 4 March 2021, on the jurisdictional objection as to whether Mr Lawless had been dismissed.

[5] The parties filed material and an in person Hearing was conducted on 4 March 2021. At the conclusion of the Hearing (and prior to any decision being made) I invited the parties to conciliate. The parties agreed. The conciliation discussions were not recorded.

[6] Mr Lawless outlined what he was seeking to resolve the matter. The AAP responded. The parties were very close but further information was required to be exchanged between the parties to conclude the settlement. Both parties indicated that they were happy to use a Deed drafted by the Commission, but also required small adjustments to be made to the document. I adjourned the matter to the afternoon of 5 March 2021 to allow this to occur.

[7] A further conference was conducted on 5 March 2021. This conference was recorded. Mr Lawless advised that he had received the proposed Deed and had no issues with it. The representatives from the AAP made an apology to Mr Lawless. Some discussion was had as to who would sign a reference for Mr Lawless. Mr Lawless summarised his understanding of the Deed. This summary accorded with the contents of the written document provided. Mr Lawless advised me that he was of sound mind and agreed to settle his claim on the basis of the material contained in the Deed. Mr Brock agreed on behalf of the AAP.

[8] On 8 March 2021, Mr Lawless provided a signed copy of the Deed, and on 10 March 2021 the AAP provided their signed copy. The Deed was executed via counterparts. The Deed incorporated a previous settlement agreed between the parties.

[9] An Agreement must be voluntarily entered into and not precured by fear, force or fraud. I was satisfied that the Agreement was a binding settlement as described in Masters v Cameron.[1]

[10] On 21 April 2021, my Associate requested that Mr Lawless provide a notice of discontinuance.

[11] Mr Lawless declined and indicated he wanted the matter to proceed. My Associate advised that this could not occur without my issuing a Certificate under s.368(3) of the Act.

[12] Section 368 provides as follows:

"(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).

(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).

(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

• (a) the FWC must issue a certificate to that effect; and

• (b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part."

[13] I invited Mr Lawless to provide submissions as to why I should issue a Certificate. Mr Lawless sought a copy of the audio files to the hearings on 4 and 5 March 2021. I approved the release of these files.

[14] The external provider originally had some difficulty locating the Audio from 4 March. As such, Mr Lawless sought more time to make submissions in order for him to receive and consider the recording. The external provider eventually located the 4 March recording, and Mr Lawless was given access to it.

[15] Mr Lawless was given until close of business on 19 May 2021 to provide submissions in relation to whether a Certificate should be issued under s.368(3).

[16] On 20 May 2021, Mr Lawless requested that he be given further time to provide submissions. Mr Lawless was granted an extension to file submissions until 4.00pm on that day.

[17] At 3.40pm on 20 May 2021, Mr Lawless filed a submission as to why I should issue a Certificate. His submission is summarised as follows:

• Events and actions of the Respondent have resulted in him suffering from Complex Post Traumatic Stress Disorder.

• AAP was granted permission to be represented pursuant to s.596 whilst Mr Lawless was unrepresented.

• Mr Lawless had not prepared to conciliate his claim at the conclusion of the Hearing as to the jurisdictional objection.

• The Commissioner provided misleading information as to the costs of pursuing the s.365 application in the Federal Court.

• The Application did not have sufficient time to consider his position

[18] In respect of these issues, I advise the following:

• I accept that I granted permission for the Respondent to be represented in what was a complex matter.

• I accept that Mr Lawless may not have expected to be asked to conciliate at the conclusion of the hearing. Where I have jurisdiction, s.368 requires me to make all reasonable attempts to resolve the dispute. In my view my conduct after the conclusion of the formal hearing is consistent with that requirement.

• I accept that it would be inappropriate as a Commission Member to persuade a party to engage in conciliation based on a false premise. I accept that I advised Mr Lawless that it would cost the best part of $1500 to pursue the matter in the Federal Court. Mr Lawless has ascertained that the filing fee is $74.50, which is correct. Mr Lawless does not appear to be aware that the Federal Court will charge an additional fee of $1440 to file a document to commence the proceeding. In my view I did not misrepresent the costs Mr Lawless faced if the matter proceeded in the Federal Court.

• In the conduct of the conciliation, Mr Lawless was very capable of articulating what he was seeking to resolve the matter, most of his claims having been accepted. Mr Lawless did not appear to have been disadvantaged by any medical condition or by not being prepared and/or represented. The conciliation had almost concluded an agreement and was adjourned to the next day to allow the parties to prepare some material referred to in the proposed agreement. This included Mr Lawless providing details of a proposed mental health talk about his experiences with AAP and feedback on a proposed staff communication and apology.

• Mr Lawless does not contest the record of proceedings which occurred on 5 March 2021 where agreement was reached, and the settlement recorded.

• I do not accept the Mr Lawless position that he was pressured or rushed. At the time that Mr Lawless accepted the offer he confirmed he was of sound mind, and this statement was consistent with his conduct before me.

• In my view an objective review of the recording of the settlement supports the position that the Mr Lawless understood the agreement and freely entered into it as such. This was additionally confirmed when Mr Lawless retuned his signed copy of the Deed on 8 March 2021.

• No complaint about the process or the Agreement was received until my Associate sought a notice of discontinuance on 21 April 2021.

[19] In MacFarlane v AECOM Australia Pty Ltd[2] the Full Bench held that 'the signed terms of settlement are persuasive evidence that the dispute dealt with under s.365 was successfully resolved'. Based on my review of the recording of the conference held on 5 March 2021 and the signed Deed executed by the parties I am persuaded that the s.365 dispute has been resolved. I have not taken into account the previous Agreement[3] to resolve the matter executed by Mr Lawless on 30 November 2020.

[20] Whilst I accept that Mr Lawless is now not satisfied with the outcome, 'buyer's remorse' is not an appropriate basis to 'undo' a properly founded settlement.

[21] Having considered the further material put by Mr Lawless I am not persuaded that there is a proper basis for concluding that the dispute was not resolved.

[22] I decline to issue a certificate under s.368(3), and the file will be closed.

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

[2] [2021] FWCFB 1343

[3] See page 109 of the Annexures to Ms Mackenzie's statement

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