[2025] FWCFB 152

Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against an administrative decision of Commissioner Harper-Greenwell at Melbourne on 9 May 2025 in matter number C2025/995 - Application under s 65B of the Fair Work Act 2009 (Cth) for Commission to deal with a dispute about flexible working arrangements - Conferences conducted in relation to application - Commissioner concluded that settlement agreement reached in conference involving appellant resigning from employment - Appellant refused to sign terms of settlement - Appellant contends that no binding settlement agreement was reached - Employment of appellant subsequently brought to an end - No utility in application in relation to flexible working arrangements - No utility in permission to appeal being granted - Permission to appeal refused.

[1] This is an appeal from the decision of a member of the Commission to close a file on the basis that a binding settlement agreement had been reached between the parties during a conference conducted by the Commission.

[2] Josue Kasindi Mpenda was employed by St Vincent's Hospital Melbourne Limited as an Associate Nurse Unit Manager at the Footbridge Community Care Unit. On 11 February 2025, Mr Mpenda applied to the Fair Work Commission under s 65B of the Fair Work Act 2009 (Cth) (the Act) raising a dispute about a request for flexible working arrangements. The details of the dispute are not important for present purposes. In short, Mr Mpenda sought approval to work Thursday to Sunday night shifts on a permanent basis to accommodate family responsibilities involving the provision of care to his young children.

[3] Mr Mpenda's application was allocated to Commissioner Harper-Greenwell. The Commissioner conducted conferences in relation to the application on 24 March 2025 and 8 May 2025. At the conference on 8 May 2025, the parties engaged in conciliation. What occurred at the conference is the subject of dispute. It is sufficient to record that there was discussion during the conference about resolving Mr Mpenda's application on the basis that Mr Mpenda would resign, and St Vincent's would make a monetary payment to him.

[4] Following the conference on 8 May 2025, the Commissioner's associate sent an email to the parties in the following terms:

I refer to the above matter and attach Terms of Settlement prepared by the Commission to reflect the agreement reached between the parties.

The parties should each sign the Terms where indicated, in front of a witness, and provide a copy to each other and to chambers by 4.00pm tomorrow, 9 May 2025. The counterparts clause provide for the Terms to be duly executed despite the parties not having signed the same document so long as each party holds a copy of the Terms signed by the other.

[5] A document entitled "Terms of Settlement" was attached to the email. The document refers to Mr Mpenda's application under s 65B of the Act and states that "[t]he Applicant and the Respondent agree to fully and finally settle the matter on the following basis". The terms then recorded include:

2.1 On 8 May 2025 the Applicant will provide the Respondent with his resignation, in writing by email, to take effect on 19 June 2025. The Respondent will record the Applicant's cessation of employment as a resignation.

[6] The other terms include that Mr Mpenda would continue on paid annual leave until 19 June 2025 and that, following the cessation of Mr Mpenda's employment, St Vincent's would make various payments to Mr Mpenda including an "ex-gratia payment" of six weeks' wages. The Terms of Settlement document included provision for a discharge and release of "all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant's employment with the Respondent, including but not limited to the cessation of employment" as well as confidentiality and non-disparagement obligations. Clause 8 of the Terms of Settlement document states:

8. Upon receipt of the signed Terms of Settlement, the Commission's file in this matter will be closed.

[7] At 7.02am on the following day, 9 May 2025, Mr Mpenda sent an email to the chambers of the Commissioner and representatives of St Vincent's. Mr Mpenda referred to the conference which had been conducted on 8 May 2025. The email continued:

During the recent conference, I verbally indicated a willingness to consider a proposed settlement. Upon reflection, I wish to respectfully withdraw that indication and confirm that I do not consent to the proposed settlement terms. Thus I am resigning my position and I am not signing written deed.

[8] The email proceeded to provide the reasons for Mr Mpenda's "withdrawal of verbal indication of settlement" which included that he was experiencing significant psychological and emotional stress due to ongoing family circumstances, that he found the conference process overwhelming as an unrepresented employee, that he was presented with the options of resigning voluntarily or facing potential dismissal and that he was in the process of obtaining legal and medical advice. Mr Mpenda requested that the file for matter number C2025/995 remain open and that St Vincent's take no action based on "the previously discussed settlement".

[9] At 1.09pm on 9 May 2025, Paula Parry, Head of People Partnering for St Vincent's, responded to Mr Mpenda's email without copying in the chambers of the Commissioner. Ms Parry's email includes the following:

I refer to recent correspondence, including your email this morning.

We acknowledge your decision to decline signing the proposed settlement terms discussed during the recent conference and confirm that your employment with SVHM remains ongoing.

[10] Mr Parry's email then states that "we hold serious concerns regarding your recent conduct". The email asserts that Mr Mpenda had admitted that he was unfit to work and perform night shift and had been continuing to perform work against medical advice. The email reiterated a direction issued to Mr Mpenda on 7 May 2025 to provide information in relation to media and social media activity relevant to his employment and the current dispute. Mr Mpenda was directed to provide an explanation concerning his attendance at work and to provide information in relation to his media and social media activity by close of business the same day, 9 May 2025. The email warned that "[f]ailure to provide a satisfactory and timely response to these directions may result in formal disciplinary action, including termination of your employment".

[11] At 4.13pm on 9 May 2025, the chambers of the Commissioner sent an email to Mr Mpenda and representatives of St Vincent's, including Ms Parry. The email from the chambers of the Commissioner is as follows:

The Commissioner has considered the correspondence and provides the following response.

Mr Mpenda submits he and his wife have triplets, 2 years of age, who are in full time day care, two children in primary school and two children who are no longer residing with him. According to Mr Mpenda his wife does not work, is studying English and a certificate III in Childcare. Mr Mpenda says in addition to his role with the Respondent he was studying for a PHD at Federation University.

On 30 October 2024, Mr Mpenda was presented with allegations of recording false data in patient files. Mr Mpenda filed a section 739 application which was resolved during a conference held on 24 March 2025. On 11 February 2025, Mr Mpenda raised a section 65.B application for a flexible working arrangement. In his application Mr Mpenda claims he was the primary carer for his children. However, Mr Mpenda submitted that his wife was not working, that the triplets were in full-time care, and the other children were either at school or not residing with him. During the conference Mr Mpenda informed the Commissioner that he was suffering from high blood pressure and diabetes, and that he had been advised by his doctor that he should not be working night shift. Mr Mpenda's section 65.B application was for a flexible work arrangement to work night shifts on the shifts that attract the maximum penalty rates.

Conferences were held on 24 March 2025 and 8 May 2025. At the conclusion of the first conference the parties agreed to meet to explore opportunities that may be better suited to Mr Mpenda's personal circumstances. Mr Mpenda was also encouraged to utilise the Respondent's support services. Mr Mpenda declined all proposed offers for alternative roles put forward by the Respondent. As the matter remained unresolved, a further conference was held on 8 May 2025.

Status of s.65B Application

The Commissioner has formed the view that in his correspondence of 9 May 2025 at 7:02AM Mr Mpenda has not accurately represented the proceedings held before her on 8 May 2025.

For the avoidance of doubt, the outcome of the conference held before the Commissioner on 8 May 2025 is that an offer was made by the Respondent to resolve the matter. Mr Mpenda put a revised position to the Respondent, which was subsequently reviewed and the offer was again increased by the Respondent. Mr Mpenda subsequently accepted the offer put by the Respondent which resolved the Application.

At all times in the process, Mr Mpenda was offered the opportunity to consider the proposal put by the Respondent for resolution including the opportunity to seek advice, discuss the proposed outcome with his wife and respond at a later date, and/or bring his wife to a further conference during which he could discuss the proposed settlement.

Mr Mpenda expressed his concerns about his ability to financially manage his money, and the offer from the Respondent was revised to include financial management advice to be paid for by the Respondent. Again, Mr Mpenda was afforded time to consider the offer and he subsequently called his wife and sought her views. Subsequent to his discussions with his wife Mr Mpenda informed the Commissioner and the Respondent that he had decided to settle the matter. Again, Mr Mpenda was asked if he wanted more time to consider the offer from the Respondent. Mr Mpenda declined and informed the Commissioner that he had accepted the settlement as he did not want to return to work. The terms Mr Mpenda agreed to were clearly explained during the conference and the Commissioner clarified with Mr Mpenda that he understood the terms of settlement.

The Commissioner is satisfied that Mr Mpenda was afforded a reasonable opportunity to consider the offer for settlement and after speaking to his wife in confidence Mr Mpenda had agreed to resolve the matter on the terms discussed during the conference which were subsequently provided in the Terms of Settlement document sent by email to the parties at the conclusion of the conference.

In conclusion, the Commissioner is satisfied that the parties agreed to settle the matter on the terms that were discussed during the conference on 8 May 2025. Regardless of whether Mr Mpenda agrees to sign the terms, an agreement has been reached, and the Respondent is required to comply with the terms. Mr Mpenda's employment will cease on 19 June 2025 as agreed by the parties at conference. The matter before the Commission is now closed as resolved in accordance with the outcome of the conference held on 8 May 2025.

[12] It is apparent from the terms of the email that the Commissioner understood that Mr Mpenda did not regard himself as having entered a binding settlement agreement at the conference on 8 May 2025. The Commissioner determined that she was satisfied that the parties had agreed to settle the matter on the terms discussed during the conference and, accordingly, determined that the matter before the Commission was closed.

[13] On 10 May 2025, Mr Mpenda obtained a medical certificate indicating that he was receiving medical treatment between 5 May and 10 May 2025 inclusive and that he was deemed unfit to continue his usual work or study during this period. A further email was sent to Mr Mpenda by Ms Parry on 16 May 2025. That email states:

We refer to your correspondence on 9 May 2025 and the Commissioner's subsequent confirmation that the matter has been resolved and that binding Terms of Settlement were reached during the conference held on 8 May 2025 (below).

As agreed to by you (and confirmed by the Fair Work Commission), your employment with St Vincent's Hospital Melbourne will cease on 19 June 2025 in accordance with the attached terms. You are to remain on paid annual leave until that date and must not attend the workplace.

That said, we note that you did not provide a response to the matters raised in our email of 9 May 2025 concerning your reported medical restrictions and your compliance with previous directions. These matters remain under review and may be addressed further if required.

No further action is required from you at this stage in relation to your employment.

[14] The evidence before the Full Bench did not clearly explain what has happened thereafter. However, Mr Mpenda and St Vincent's confirmed at the hearing of the appeal that St Vincent's has treated Mr Mpenda's employment as having come to an end on 19 June 2025. The Full Bench was informed that St Vincent's paid out Mr Mpenda's entitlements at that time and Mr Mpenda has not performed work for St Vincent's since that time. We acknowledge that Mr Mpenda disputes that he has received his correct entitlements in full.

[15] In relation to the appeal, Mr Mpenda filed an affidavit affirmed on 26 May 2025 which annexed a series of documents, including the email correspondence to which we have referred thus far in this decision. The Full Bench is able to receive further evidence on appeal in accordance with s 607(2) of the Act. In circumstances in which the principal issue sought to be raised on appeal by Mr Mpenda concerns whether a binding settlement agreement was reached at the conference on 8 May 2025, it was appropriate and necessary for further evidence to be advanced on appeal in relation to that matter. For that reason, the Full Bench admitted the affidavit of Mr Mpenda as further evidence on appeal.

[16] The notice of appeal filed by Mr Mpenda contends that the Commissioner erred in determining that a binding settlement was reached on 8 May 2025. The notice of appeal sets out six grounds in support of that contention. In summary, the grounds are that the Commissioner erred in finding that Mr Mpenda possessed the requisite mental capacity to enter a binding settlement agreement, erred in failing to find that the settlement agreement was vitiated by undue influence or pressure, erred in failing to find that the purported agreement was procured by unconscionable conduct, erred due to significant procedural unfairness in the conciliation process, erred in being satisfied that Mr Mpenda had agreed to resolve the matter and "did not want to go back to work" and erred in finding that a binding settlement was formed where the terms were detrimental and not fully comprehended by him.

[17] At the hearing of the appeal, Mr Mpenda made comprehensive submissions generally reflecting the grounds of appeal and his written submissions. In elaborating on the grounds of appeal, Mr Mpenda submitted that the agreement made at the conference reflected the third category referred to in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353, namely, that the parties did not intend to make a concluded bargain unless and until executing formal terms of settlement which did not occur.[1] Mr Mpenda repeated his submission that he did not, at the time of the conference on 8 May 2025, have the capacity to make an agreement and complained that he felt pressured by St Vincent's and by the Commissioner to agree to resign. Mr Mpenda also alleged that St Vincent's had contravened the Act by failing to agree to his request for flexible working arrangements and by taking adverse action against him. It is unnecessary to comment on those matters. They fall outside the matters which properly arise in the appeal.

[18] Mr Mpenda submits that permission to appeal should be granted in the present matter for a number of reasons. Mr Mpenda says that permission to appeal should be granted to ensure the integrity and fairness of Commission conciliation processes, to uphold principles of genuine consent, in order to alleviate the manifest injustice he claims to have suffered, to provide clarity in relation to relevant vitiating factors in Commission facilitated settlements and to maintain public confidence in the Commission's processes. Mr Mpenda claims that the appeal raises issues of general importance to the jurisdiction of the Commission, including in relation to settlement agreements, the fairness and integrity of conciliation processes and the circumstances in which a purported settlement agreement is vitiated by a lack of capacity on the part of one of the parties.

[19] Section 604(1) of the Act provides that a person aggrieved by a "decision" of the Commission may appeal the decision, with the permission of the Commission. St Vincent's submits that the fact that the Commissioner considered the file to be closed does not constitute a "decision" of the Commission and that Mr Mpenda is, in truth, aggrieved by his own agreement to resolve the matter rather than any decision of the Commission. In that regard, St Vincent's relies on the decision of the Full Bench in Rahman v Owna Corp Pty Ltd [2023] FWCFB 128 (Rahman).[2]

[20] The act of the Commission to administratively close a file is, in itself, of no statutory significance. An administrative act cannot bring an application, properly brought within the Commission's jurisdiction, to an end or exhaust the jurisdiction of the Commission. However, a different circumstance arises if a member of the Commission determines a dispute as to whether a matter has been resolved or not and, having decided the proceedings have been resolved, takes action to bring the proceedings to a permanent end. In that situation, the Commission has made a "decision" that the jurisdiction of the Commission is at an end that may be amenable to appeal under s 604(1) of the Act.

[21] That was recognised in Rahman itself. In Rahman, the parties to an application brought under s 365 of the Act signed written terms of settlement following a conference conducted by a staff conciliator employed by the Commission. Mr Rahman sought to appeal the terms of settlement and sought a "lawful remedy, or rightful verdict, or rightful outcome". The Full Bench considered that Mr Rahman had not appealed a decision of the Commission and that no decision had been made with respect to his application under s 365 of the Act. The Full Bench observed:[3]

Where a settlement is reached by way of a private agreement between parties to a dispute, the recognition by the Commission that the matter is finalised is not immediately a "decision." It is a mere administrative step bearing more similarity to the receipt of a notice of discontinuance than the operative exercise of a power, with legal force or effect.

[22] However, the Full Bench acknowledged that, where there is a dispute as to whether a settlement has occurred, the Commission may decide that dispute and make a "decision" as to whether an agreement had been concluded. The Full Bench said[4]:

In any event, having considered its jurisdiction to be at an end on the basis of a fact in existence (i.e., an effective settlement agreement), and not the exercise of a statutory power, the Commission retains jurisdiction to decide on a challenge to that conclusion. The ordinary course to be adopted where a party challenges the validity of a settlement would be for a Member of the Commission to decide on the challenge in writing, whether that decision is expressed in a formal publication or otherwise. Unless and until a decision is made to resolve that challenge, there is no "decision" to appeal.

[23] In Dawson v Centre for Digestive Diseases [2025] FWCFB 50, the Full Bench dealt with an appeal from the act of a member of the Commission to close a file with respect to an application under s 365 of the Act. The Full Bench observed that "closing" a file does not itself bring a proceeding to an end or prevent the Commission from further dealing with the matter. However, the Full Bench concluded that, in the circumstances of that matter, the act of the member of the Commission was intended to bring the proceedings to a permanent end and amounted to the dismissal of the proceedings. Among other things, the Full Bench explained:[5]

However, in the particular circumstances of this matter, we accept the common position of the parties that, although the decision was expressed in terms that the file had been "administratively closed", it was a decision to dismiss the application. It is apparent from the email dated 3 December 2024 that the Commissioner regarded the matter as having been resolved and that the act of administratively closing the file was intended to permanently bring the proceedings to an end. This is also clear from the Commissioner's subsequent email of 11 December 2024 in which the Commissioner confirms that he considered the matter was resolved and that "[t]he Commission's role in this matter has ceased". In circumstances in which the application had not been discontinued, the jurisdictional objections had not been determined, and no certificate had been issued under s 368(3), the only reasonable interpretation of what the Commissioner had done was that he had dismissed the application.

In our view, though, if the Commission decides to not only acknowledge or "recognise" that settlement has been reached, but to find as much and takes action to bring the proceedings to an end on that basis, or to refuse a request to issue a certificate under s 368, that is a decision susceptible to appeal if permission is granted.

[24] We consider that the same conclusion applies in this matter. The email from the Commissioner's chambers on 9 May 2025 indicates that the Commissioner reached a firm conclusion that "the parties agreed to settle the matter on the terms that were discussed during the conference on 8 May 2025" and that "[t]he matter before the Commission is now closed as resolved in accordance with the outcome of the conference held on 8 May 2025". The Commissioner made a decision in relation to the disputed settlement and, in effect, dismissed the application. The Commissioner made a "decision" which is able to be appealed under s 604(1) of the Act.

[25] A person aggrieved by a decision of the Commission may appeal the decision only with permission under s 604(1) of the Act. The Commission must grant permission to appeal if satisfied that it is in the public interest to do so in accordance with s 604(2). Otherwise, the Commission has a broad discretion as to whether to grant permission to appeal. One reason the Commission might refuse permission to appeal is that the appeal lacks practical utility.[6] In our opinion, permission to appeal should be refused in this matter because there would be no useful purpose served in granting permission to appeal in the circumstances. A number of considerations support that conclusion.

[26] First, the proceedings dealt with by the Commissioner involved an application by Mr Mpenda under s 65B of the Act for the Commission to deal with a dispute in relation to flexible working arrangements. In arbitration of such a dispute, the Commission may make the type of orders set out in s 65C(1). In summary, the Commission can order that the employer is taken to have refused the request, that the grounds on which the employer relied be taken to be (or not be) reasonable business grounds to refuse the request, that the employer take steps to respond to the request or that the employer grant the request or make specified changes to the employee's working arrangements. Each of the orders the Commission is able to make is directed at the ongoing and future working arrangements of the employee concerned.

[27] Mr Mpenda's application under s 65B of the Act has no ongoing utility in circumstances in which, rightly or wrongly, St Vincent's has determined to treat his employment as being at an end and, on any view, the employment relationship appears to be over. If the Full Bench were to accept Mr Mpenda's submissions, the only outcome that can be achieved is to set aside the Commissioner's decision and revive the proceedings under s 65B. That step would serve no purpose in circumstances in which the employment has been brought to an end either by agreement or by reason of the conduct of St Vincent's. There is no useful order that the Commission could make in relation to Mr Mpenda's working arrangements in the circumstances.

[28] Second, it is apparent from the notice of appeal and from his submissions in relation to the appeal that Mr Mpenda seeks a "declaration" that no binding settlement agreement was reached between himself and St Vincent's. The Commission cannot make a declaration in relation to the existence, or otherwise, of a concluded settlement agreement between Mr Mpenda and St Vincent's. The making of a binding declaration of right is an instance of the exercise of judicial power not available to the Commission.[7] A determination by the Commission that a settlement agreement was reached, or was not reached, between the parties would not be binding generally outside of these proceedings. If a binding settlement agreement was reached, it is doubtful that the Commission can determine whether duress, or other undue influence, affected the agreement.[8]

[29] Mr Mpenda also effectively seeks to be reinstated on the basis that his employment was brought to an end on the erroneous assumption that a binding settlement agreement existed. The Commission can, in unfair dismissal proceedings, order the reinstatement of a dismissed employee if it is satisfied that the person was protected from unfair dismissal and has been unfairly dismissed.[9] However, that type of application was not before the Commissioner at first instance and is not before the Full Bench on appeal. Even if the Full Bench did grant permission to appeal and accepted the submission of Mr Mpenda that no binding settlement agreement was made, that would not have the effect of reinstating his employment. The Full Bench cannot, in the present appeal, make an order reinstating Mr Mpenda to his employment.

[30] Third, if Mr Mpenda's submissions are correct, it may be that St Vincent's has wrongly treated his employment as being at an end as a result of a binding settlement agreement being reached at the conference on 8 May 2025 and thereby repudiated his contract of employment. If that is so, there may have been, and may still be, proceedings which Mr Mpenda could bring in relation to the cessation of his employment. At the hearing of the appeal, Mr Mpenda also alleged that St Vincent's has breached the Act in various ways, including by failing to agree to his request for flexible working arrangements and by contravening the general protections provisions in Part 3-1 of the Act.

[31] If Mr Mpenda were to commence other proceedings, it may be open to St Vincent's to rely on the discharge and release it says is part of the settlement agreement reached at the conference on 8 May 2025. It would then be a matter for the court or tribunal hearing those proceedings to determine, on the evidence before it, whether a binding settlement was reached and, if so, the terms of the agreement. The court or tribunal would not be bound by any view the Full Bench might now form about that question or, for that matter, the conclusions of the Commissioner. In those circumstances, there is no utility in the Full Bench granting permission to appeal in order to consider whether a binding settlement was reached and it would not be appropriate for the Full Bench to express a view about the question.

[32] For these reasons, we are not satisfied it is appropriate to grant permission to appeal in this matter.

[33] The Full Bench orders that permission to appeal is refused.

K Paull, Workplace Relations Specialist, for the respondent.

[1] Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 at 360 (Dixon CJ, McTiernan and Kitto JJ).

[2] See Rahman v Owna Corp Pty Ltd [2023] FWCFB 128 at [34]- [38].

[3] Rahman v Owna Corp Pty Ltd [2023] FWCFB 128 at [34].

[4] Rahman v Owna Corp Pty Ltd [2023] FWCFB 128 at [38].

[5] Dawson v Centre for Digestive Diseases [2025] FWCFB 50 at [39] and [41].

[6] Bechtel Construction (Australia) Pty Ltd v Maritime Union of Australia [2013] FWCFB 4250 at [11]; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; (2013) 238 IR 258 at [48]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Shoalhaven Starches Pty Ltd (t/as Manildra Group) [2024] FWCFB 315 at [29].

[7] Re Cram; Ex parte Newcastle Wallsend Coal Company Pty Ltd [1987] HCA 29; (1987) 163 CLR 140 at 149 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ); Carter v Auto Parts Group Pty Ltd [2021] FWCFB 1015; (2021) 304 IR 1 at [16].

[8] Chapman v Ignis Labs Pty Ltd T/A Ignis Labs [2020] FWCFB 3849 at [29]; McMahon v Ventura Bus Lines Pty Ltd [2020] FWCFB 4853 at [31].

[9] Fair Work Act 2009 (Cth), s 390(1).

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