s.394 - Unfair dismissal

Application for an unfair dismissal remedy - binding settlement - application dismissed under s.587(1)(c)

[1] On 9 June 2025, Mr Daniel Bourman (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed from his employment with Beldantae Rosa Pty Ltd (the Respondent).

[2] The matter was listed for member-assisted conciliation before Vice President Asbury on 3 September 2025. The parties reached an agreement during that conciliation conference. The application was not discontinued on the record.

[3] Subsequently, the applicant signed the settlement deed, but not before a witness, as the settlement deed requires. The Respondent has not paid the Applicant the settlement amount under the deed as they state the Applicant should first sign the deed before a witness. The Applicant has not discontinued the matter because he has not been paid the settlement amount under the deed.

[4] My chambers followed up with the parties five times regarding the notice of discontinuance. Subsequently, I informed the parties that if I did not receive a notice of discontinuance by Monday, 12 January 2026, I would consider dismissing the application under s.587(1)(c). My Chambers has received no reply to that email.

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under s527F that does not consist solely of an application for a stop sexual harassment order on the ground that the application:

[6] An application may be dismissed under s. 587(1)(c) where a binding settlement has been reached such that the cause of action has been extinguished. I note Besanko J held in Australian Postal Corporation v Gorman [2011] FCA 975; (2011) 196 FCR 126 at [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 Ch 3 Pt 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 subs 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.

[7] Vice President Asbury recorded the terms of settlement between the parties at the conclusion of the conciliation. I need not reproduce the terms of settlement in full. It is sufficient to state that the Vice President clearly recorded a binding settlement. The Vice President concluded the conciliation with the following:

Vice President Asbury: Great. OK. All right. So we'll take that amendment as having been orally agreed, the document will be amended to reflect that and that's the terms of the settlement. So Mr Bourman, you now understand those terms of settlement and that they are immediately binding upon you.

Vice President Asbury: And that all you're doing is signing a document that sets out those terms of settlement, and they're binding regardless.

Vice President Asbury: Okay, Miss Mataere, if I can just ask, perhaps, Miss Egan, to confirm that she has. She understands the terms of settlement has had an opportunity to receive advice and understands also that they are immediately binding on the respondent.

[8] This exchange evidences a binding agreement within the first category of Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353. The agreement was immediately binding on the parties. Accordingly, a valid and effective accord and satisfaction has been reached and the Applicant's claim is without reasonable prospects of success.

[9] It is appropriate to exercise my discretion to dismiss the application under s.587(1)(c). The powers of enforcement of the agreement lie with a court of competent jurisdiction.

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