Fair Work Act 2009

s.773 - Termination of employment

Application to deal with an unlawful termination dispute

• [1] On 24 March 2025, Mr Gurbhejsingh Deeda (the Applicant) made an application pursuant to section 773 of the Fair Work Act 2009 (Cth) (the Act) in relation to his employment with Housing Choices Western Australia Limited (the Respondent).

• [2] The Respondent objects to the application on the basis that the parties reached a binding settlement during a conciliation conference, conducted by Deputy President Beaumont, which was listed in a prior application.

• [3] The first application made by the Applicant against the Respondent in the current matter was lodged on 25 November 2024. The first application was made pursuant to section 739 of the Act, to deal with a dispute. The first application was dismissed by Commissioner Lim on 7 February 2025, for want of jurisdiction.[1]

• [4] The second application made by the Applicant against the Respondent in the current matter was lodged on 10 February 2025. The second application was made pursuant to section 372 of the Act, to deal with a General Protections contravention dispute. The matter was listed for conference, before Deputy President Beaumont, on 4 March 2025. During the conference, the parties reached an agreement to settle the matter on financial and non-financial terms. The settlement terms were agreed to by both the Applicant and Respondent on the record and in the presence of the Deputy President. A transcript of the recorded portion of the conference has been produced. Thereafter, the Applicant raised issue with the Terms of Settlement document and refused to comply with the settlement terms. The Applicant was pressed for compliance with the terms and to file discontinuance, this did not occur. With the Respondent having withdrawn its consent to further participation in the matter and noting the limited powers of the Commission in dealing with such application types, it was further confirmed that the matter was closed with the Commission.

• [5] The third application made by the Applicant against the Respondent is the current matter before the Commission.

• [6] The Applicant alleges that the Respondent unlawfully terminated his employment with the Respondent broadly for the following reasons:

• The Applicant filed a complaint against the Respondent for alleged violation of law or regulations to competent administrative authorities.
• The Applicant participated in proceedings against the Respondent - namely the proceedings at the Commission dealt with by Deputy President Beaumont and Commissioner Lim.
• Due to the Applicant's race - as the Applicant's salary increase was incorrectly applied by the Respondent.
• Due to the Applicant's sex - as the Applicant's supervisor had denied the Applicant a flexible working arrangement and discriminated against the Applicant.
• Family or carer's responsibilities - as the Applicant's supervisor had denied the Applicant a flexible working arrangement and discriminated against the Applicant.

• [7] The Applicant broadly made the following submissions in relation to the jurisdictional issue, being that the Respondent had not dismissed the Applicant, rather the Applicant had resigned from his employment.

• The Respondent breached the implied terms of the employment contract by serving a statement of service to affect the cessation and termination of the Applicant's employment.
• The Respondent applied undue pressure and for the Applicant to leave the company due to the Applicant exercising protected workplace rights.
• The was no signed terms of settlement entered into between the parties.
• The Applicant never provided a written resignation, and the Applicant did not resign from his employment.
• The Respondent unlawfully terminated the Applicant's employment on 19 March 2025 and backdated the date of termination to 4 March 2025.

• [8] The Respondent submits that the Applicant was not dismissed by the Respondent rather, the Applicant resigned from his employment with the Respondent at the conference held before Deputy President Beaumont on 4 March 2025.

• [9] The Respondent submitted that at no time did it terminate the Applicant's employment rather, the Applicant agreed to a full and binding settlement with immediate effect and no cooling off period on the record before Deputy President Beaumont, therefore the jurisdiction for an unlawful termination application such as this not enlivened. The Respondent submits that as there was no termination or dismissal at the initiative of the Respondent then section 773 as not be enlivened and therefore the application is without jurisdiction.

• [10] The Respondent provided witness evidence from Ms Cathie Johns (Senior People & Culture Business Partner) and Ms Leonie Boyd (General Manager People & Culture). It was the evidence of both Ms John and Ms Boyd that the Applicant agreed to a verbal settlement in the conference before Deputy President Beaumont on 4 March 2024, and as a part of this settlement the Applicant resigned from his employment with immediate effect.

• [11] The Respondent submitted that after the binding agreement was reached before Deputy President Beaumont, the Applicant attempted to change the terms of the agreed settlement.

• [12] The Respondent submits that the case law in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 at [10] made the following observations in relation to binding agreements:

"In each of the first two cases there is a binding contract; in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document."

• [13] The Respondent submits that this position was supported by the Commission in Lewer v Australian Postal Corporation [2022] FWC 2822, which held at [62] that:

"Were it necessary to determine whether a binding settlement agreement existed prior to that date, I would so find. An agreement of the first category in Masters v Cameron did in fact exist. Such an agreement was made on 6 September 2022 when Mr Lewer accepted Australia Post's offer of the same date."

• [14] Ms John in her witness statement provided a copy of the transcript of the settlement before Deputy President Beaumont on 4 March 2025 which confirmed the following items, for brevity I have highlighted the key items for the purpose of this decision:

• The Applicant and the Respondent have agreed to fully and finally settle the matter.
• The Applicant will resign from his position with the Respondent effective 4 March 2025.
• The parties accept that this constitutes a binding agreement, that there is no cooling off period, that essentially, the agreement reached extinguishes the application under section 372 of the Fair Work Act and further general protections applications and as such that any further claim is made with respect to the terms of settlement.
• The Applicant confirmed on the record that he had accepted the above terms of settlement.

• [15] From the evidence submitted by the parties, I am satisfied that the Applicant and the Respondent entered into a binding agreement consistent with the first category in Masters v Cameron.

• [16] There was no requirement for the Applicant to provide a formal notice of resignation, as when he verbally accepted the binding settlement agreement before Deputy President Beaumont on 4 March 2025, he in effect resigned from his employment of his own free will in exchange for the agreement settlement.

• [17] I believe that the Applicant specifically decided to file a section 773 application as he fully understood from the binding settlement agreement reached on 4 March 2025 that he could not seek to make any further general protection applications.

• [18] As the Applicant resigned from his employment with the Respondent on 4 March 2025, it is evident that the Respondent did not dismiss or terminate the Applicant's employment, therefore there was no dismissal at the initiative of the Respondent. As a result of there being no termination of the Applicant's employment, there is no jurisdiction for the Commission to deal with a dismissal dispute under section 773 of the Act.

• [19] Having concluded that the Applicant was not dismissed by the Respondent as defined in the Act, the Applicant's application under section 773 is therefore dismissed.

• [20] An Order to that effect has been issued.

[1] [2025] FWC 372, [PR784166].

Printed by authority of the Commonwealth Government Printer