Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - request to re-open application - binding settlement agreement - accord and satisfaction extinguishes cause of action - application dismissed pursuant to s.587 of the FW Act.

• [1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 7 August 2025.
• [2] On 4 June 2025, Mr Tran made an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) alleging he was unfairly dismissed by Westpac Banking Corporation. The application was the subject of a staff conciliation on 10 July 2025 at which Mr Tran was represented. Following the conciliation the conciliator sent an email confirming that the matter had settled and set out the substantive elements of the agreement being:
  • Payment of a gross amount of $18,693.21 taxed to the applicable law;
  • Acceptance of a resignation;
  • Provision of a statement of service;
  • Release - one way;
  • Confidentiality - mutual; and
  • Non disparagement - one way.

• [3] The conciliator noted that terms of settlement were to be prepared by the parties. Westpac subsequently sent a draft written agreement to Mr Tran, who did not sign it.

• [4] On 17 July 2025, Mr Tran emailed the Commission stating that: "At ... conciliation, I verbally agreed to settle the matter for 12 weeks' pay. However I have not signed any deed of release or provided written acceptance of those terms." After the conciliation, Mr Tran advised that he had reviewed his entitlements and considers he met the criteria for redundancy stating. "In light of this, I no longer consider the verbal agreement valid".

• [5] The same day he sent an email to Westpac which said "I write to formally withdraw my verbal agreement made during conciliation .... in which I provisionally accepted 12 weeks' pay in settlement of my unfair dismissal claim."

• [6] In each of these emails, the language Mr Tran used clearly indicates that he understood that an agreement had been reached but that he was seeking to withdraw from that agreement. Mr Tran's evidence was that he believes that a verbal agreement is not binding unless or until it is reduced to writing.

• [7] Mr Tran now says there was no binding agreement reached on 10 July 2025 at conciliation because:

• the draft Deed provided by Westpac on 10 July 2025 contained other clauses that were never agreed to at the conciliation;
• Mr Tran was not offered a cooling-off period, and if he had, he would have utilised it;

• • Mr Tran submits it's a Masters v Cameron[1] category 3 agreement - his verbal agreement was conditional on receiving and reviewing information about his redundancy entitlements; and that

• negotiations on the deed of release continued for many weeks and remain unresolved.

• [8] I am satisfied that there was a binding agreement reached at the conciliation on 10 July 2025, and that it was an agreement described as Category 2 in Masters v Cameron - that is, the parties had completely agreed upon all the terms but had made performance of one or more of the terms to be conditional upon the execution of a formal agreement. Having entered a binding contract, this constitutes an accord and satisfaction of Mr Tran's unfair dismissal application.

• [9] Ms Oxley of Westpac gave evidence that a binding agreement was reached at conciliator, as reflected in the conciliator's email. Ms Williamson, Mr Tran's representative at the conciliation, gave evidence that whilst she cannot speak to Mr Tran's subjective understanding, her understanding was that an agreement in principle was reached at the conciliation on the terms contained in the conciliator's email, and that Mr Tran's agreement was not expressed to be conditional in any way. The language used by Mr Tran, and the evidence of Westpac and Mr Tran's representative at the conciliation instead clearly indicates that an agreement was reached at the conciliation.

• [10] Mr Tran says that "it was always understood that the discussions at conciliation were 'in principle' only and a binding agreement would arise only upon execution of a satisfactory deed. I am not satisfied that this was a shared understanding nor that the agreement reached was conditional upon entering a written agreement.

• [11] Mr Tran's belief seems to be based on an exchange with the conciliator where after requesting additional days to consider his position the conciliator explained that the opportunity was now, and a second conciliation would not be possible. Mr Tran appears to have interpreted the conciliator's explanation about the need to withdraw the unfair dismissal application within 7 days and sign and return the deed being prepared by Westpac to mean that he had this amount of time to withdraw his agreement. However, I am not satisfied that there is a basis for this view, and if it was so significant to Mr Tran, then it was incumbent on him to clarify this with his representative before indicating, as he did, that he agreed to the settlement terms. When he indicated his agreement to the terms, he did so without expressing that it was conditional in any way, either on entering the contract or on reviewing information about his redundancy entitlements.

• [12] It is not relevant that Mr Tran would have utilised a cooling-off period if he had been offered one. There was no cooling off period in place, and Mr Tran did not make his agreement conditional upon there being a cooling off period. Cooling off periods are not usually provided or offered in circumstances where parties are represented. There is nothing unusual that a cooling off period was not offered in this instance.

• [13] That Westpac sought to include other clauses in the deed it provided to Mr Tran also does not alter the nature of the agreement reached. Mr Tran was entitled to resist signing the deed until it accurately reflected the agreed terms, or alternatively he could have negotiated the final content of the agreement. This is in essence what he sought to do. That the negotiations were unsuccessful does not alter the fact that an agreement was entered into on 10 July 2025.

• [14] I find that the parties reached agreement on 10 July 2025 of the second type referred to in Masters v Cameron. I am therefore satisfied that Mr Tran's unfair dismissal application has no reasonable prospects of success. I have determined to exercise my discretion under s587(1)(c) of the Act to dismiss the application.

• [15] I order that the application for an unfair dismissal remedy pursuant to s.394 of the Act made by Mr Linh Tran against Westpac Banking Corporation on 4 June 2025 in case U2025/9591 is dismissed.

L. Tran, the Applicant, appearing on his own behalf.

S. Williamson, former representative of the Applicant, appearing to give evidence.

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

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