s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Deed of Settlement signed by both parties - Application dismissed

• [1] On 20 September 2025, Mr Mohammad Kawser Hasan (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the FW Act), alleging that he was unfairly dismissed by RNS Cleaning Services Pty Ltd (the Respondent), stating that he had not received any shifts from 5 September 2025.

• [2] In its Form F3 - Employer response to an unfair dismissal application, the Respondent ticked that it did not raise any jurisdictional objections to the application. However, also in its Form F3 response, the Respondent raised that the Applicant was 'never dismissed', nor was he employed by the Respondent. The Respondent claimed that the Applicant was a contractor and not an employee.

• [3] On 10 December 2025, my Chambers issued a Notice of Listing for a Conference/Directions to be conducted by telephone on 23 December 2025.

• [4] Also on 10 December 2025, the Respondent wrote to my Chambers advising that he did not intend to attend the Conference/Directions as the parties had signed a Deed of Settlement on 21 November 2025. The Respondent attached a copy of this deed.

• [5] My Chambers wrote to both parties on 11 December 2025, acknowledging the deed that had been signed by both parties, and asking whether the Applicant intended to withdraw his unfair dismissal application on this basis.

• [6] Also on 11 December 2025, the Applicant wrote to my Chambers to advise that the deed related to a Fair Work Ombudsman matter that had been referred to the Federal Circuit Court, and which had no impact on his unfair dismissal application before the Commission. On this basis, the Applicant wished to proceed with his application.

• [7] The Conference/Directions took place by telephone as scheduled on 23 December 2025. During the Conference, the Respondent pressed its objections on the grounds that the Applicant was not dismissed, not an employee, and further that the matter could not proceed as the parties had both signed a deed in full and final settlement of all matters. The Applicant confirmed that he wished to proceed with his application.

• [8] Directions issued to the Applicant on 23 December 2025, requiring that he file any submissions and materials he sought to rely on in support of why his application should not be dismissed, by 2 January 2026.

• [9] Submissions were received from both parties in response to these directions.

• [10] I have determined that it is appropriate to dismiss the Applicant's application under s.587 of the FW Act. My reasons are set out below.

(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 on the ground that the application:

• [12] It has been held that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party's application, which has been made in order to seek some form of relief from a beneficial statutory provision.[2]

• [13] I refer to the decision in Gorman v Australia Post [2010] FWA 7423 (Gorman). In that decision, Senior Deputy President O'Callaghan dismissed Mr Gorman's unfair dismissal application, on the basis that it was frivolous and vexatious as the parties had reached a binding agreement,[3] where the parties had agreed on a financial settlement and just had to conclude the wording of the deed. On appeal, a Full Bench of Fair Work Australia, as the Commission then was, reversed Senior Deputy President O'Callaghan's decision. The Full Bench stated that a conclusion that the application was 'frivolous or vexatious' would require an assessment of the substance of the application, which had not taken place.[4]

• [14] Australia Post appealed this decision to the Federal Court of Australia. Justice Besanko in Australian Postal Corporation v Gorman [2011] FCA 975, stated:

"[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 Chapter 3 Part 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 subsection 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."

• [15] The facts in this matter are slightly different to Gorman on the basis that both parties had signed a completed Deed of Settlement dated 21 November 2025. The Applicant submitted that this was an "invalid deed of settlement". The Applicant submitted that the Deed of Settlement only relates to his claim of $68,000 for underpayment and exploitation which is before the Federal Circuit Court. I note that the Deed of Settlement provides for a settlement sum of $20,000, which the Respondent confirms it has already paid to the Applicant.

• [16] At clause 1 of the Deed of Settlement, it provides that the sum is paid as a 'Full and Final Settlement'. Further, in clause 3 of the Deed, it states:

3.1. Upon satisfaction of the various obligations set out in clause 2 of this Deed, each party releases and forever discharges the other party (and their agents, officers, employees, successors and assigns) from any and all actions, claims, demands, causes of action, suits, debts, damages, liabilities or proceedings of any kind whatsoever (whether known or unknown, actual or contingent) arising out of or in connection with:

• The employment or engagement relationship between the parties;
• Any claim under the Fair Work Act 2009 (Cth), Fair Work Regulations 2009 (Cth), or any other Commonwealth or Northern Territory legislation relating to employment;
• ..."

3.2. This Deed may be pleaded as a bar to any such proceeding brought by any party against the other."

• [17] The Applicant also sought to file and rely on various text messages exchanged between the parties and monies received from the Respondent as proof that an 'employer/employee' relationship existed. However, I note that clause 2.2 of the Deed of Settlement provides that:

"The Parties agree that the nature of their working relationship did not amount to employer/employee and therefore superannuation is not payable."

• [18] It is now very convenient for the Applicant to claim that he did not know what he was signing. However, the fact remains that it is a legally enforceable document which was signed by the Applicant and the Respondent in the presence of a witness. The fact that the Applicant did not seek advice before signing the deed was a decision that he made voluntarily.

• [19] After considering all of the circumstances in this matter as identified above, and following the decision in Gorman, I am satisfied and find that it is appropriate to dismiss Mr Hasan's application on the basis that it is frivolous or vexatious in light of the Deed of Release signed by both parties in full and final settlement of all claims and has no reasonable prospect of success.

• [20] Accordingly, the application is dismissed pursuant to section 587 of the FW Act.

[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

[3] [2010] FWA 7423

[4] Gorman v Australia Post [2010] FWAFB 9413 at [13] and [15].

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