s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - binding settlement agreement reached - application dismissed

• [1] Mr Huan Gao has applied for an unfair dismissal remedy, naming MCC Pty Limited as the Respondent. MCC Pty Limited objected to the application, including on the basis that it was not Mr Gao's employer, and instead Mr Gao was employed by a related corporate entity, Construction Works Qld Pty Limited.

• [2] Mr Gao subsequently sought to substitute Construction Works Qld Pty Limited as the Respondent in these proceedings. On 9 June 2025 after hearing from the parties I decided to grant Mr Gao's request and substitute Construction Works Qld Pty Limited as the Respondent in these proceedings. The parties were advised of the decision in writing and invited to indicate within two working days if they wished to request written reasons. Neither party did so. However, MCC Pty Limited wrote to my chambers on 11 June 2025, as follows:

Please find attached the Deed of Release and Settlement for this matter. We understand this matter to have been finalised in February 2025.

• [3] The email attached a document entitled Deed of Release and Settlement and a certificate issued by the Queensland Industrial Relations Commission ("QIRC"). The certificate related to conciliation by the QIRC of a "fair work claim", which is a claim in relation to a civil remedy provision under section 539(1) and (3) of the Fair Work Act 2009 (Cth).[1]

• [4] The certificate indicated that the parties had reached agreement and the terms of their agreement were enclosed in a sealed envelope. This is consistent with rule 123T of the Industrial Relations (Tribunals) Rules 2011 (Qld) which requires the settlement agreement to be placed in a sealed envelope before being provided to the Industrial Registrar for retention on the court file.

• [5] I do not consider that this arrangement of providing the settlement agreement to the Industrial Registrar in a sealed envelope prevents either party from providing a copy of the settlement agreement to this Commission for the purpose of relying on the release as a basis for an application, to which that release would apply, to be dismissed. Nor do I consider the confidentiality provision of the settlement agreement prevents a party from doing so. That would defeat the purpose of including a release of the breadth contained in this settlement agreement, which I have referred to below.

• [6] The settlement agreement is entitled "Deed of Release and Settlement" and the parties to it are Mr Gao and "Construction Work Qld Pty Ltd." I take the reference to "Work" in that settlement agreement, rather than "Works" (as appears in the Respondent's name in these proceedings) to be immaterial in the circumstances that MCC Pty Limited provided this document, and that Mr Scroope, who has been participating in these proceedings on behalf of MCC Pty Limited and the now-Respondent, appears to have signed on behalf of "Construction Work Qld Pty Ltd." Clause 2 of the settlement agreement provides a release in the following terms:

The parties agree the payments described in paragraph 1 above represent full and final settlement of all matters, disputes, or other causes of action whatsoever, arising out of the employment relationship, that exist between them now, or may exist in the future, save for any actions protected by statute.

• [7] In my view there is no doubt that an unfair dismissal claim does not fall into the category of "actions protected by statute" referred to at the conclusion of the clause, and that an unfair dismissal claim is capable of being released by such a clause.

• [8] Mr Gao also wrote to my chambers on 11 June 2025, as follows:

I confirm that a settlement agreement was reached between the parties. However, I believe the other party has not fulfilled the agreed terms.

We have attempted to resolve the issue by email, but the other party stopped responding before the matter was resolved.

At this stage, there is no independent third party who can verify whether Mr Chris has complied with the terms of the agreement.

In light of these circumstances, I maintain my position to continue with the proceedings before the Fair Work Commission.

• [9] On 12 June 2025 MCC Pty Limited wrote to my chambers attaching proof of payment to Mr Gao.

• [10] My chambers wrote to the parties on 12 June 2025, as follows:

As Mr Gao has accepted that the parties reached a settlement agreement, the Deputy President's preliminary view is that if the settlement agreement covered the claims the subject of these proceedings, then continued pursuit of the Application would be frivolous and vexatious, and the Application has no reasonable prospects of success, see Australian Postal Corporation v Gorman [2011] FCA 975; (2011) 196 FCR 126 at [33].

The Fair Work Commission has no power to enforce settlement agreements. That should be done via the courts.

Mr Gao, if you wish to maintain your request for the proceedings to continue, please provide written submissions as to:

1. whether the settlement agreement discharged, released or otherwise dealt with the claims the subject of these proceedings; and

2. if so, why the application is not, as a consequence:

Please provide your submissions by 4:00 pm on Friday 20 June 2025.

• [11] Mr Gao wrote to my chambers on 19 June 2025. His response related to whether the Respondent had complied with the settlement agreement, and the manner of the Respondent's implementation of it. I have not considered it necessary to invite the Respondent in these proceedings to file any submissions in response.

• [12] It is not in dispute that the parties reached a settlement agreement. Nor has Mr Gao contested that the settlement agreement was in the terms provided by the Respondent.

• [13] I find that the settlement agreement covered the claims the subject of these proceedings. Accordingly, I find that the Application is rendered frivolous and vexatious, and the Application has no reasonable prospects of success.[2]

• [14] That enlivens my discretion, under section 587 of the Fair Work Act, to dismiss the Application. I exercise that discretion.

• [15] Mr Gao's application under section 394 of the Fair Work Act is dismissed.

[1] Industrial Relations Act 2016 (Qld) s 507B.

[2] Australian Postal Corporation v Gorman [2011] FCA 975; (2011) 196 FCR 126 at [33].

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