Fair Work Act 2009

s.365 - General protections

General protections - whether a certificate should be issued under s.368.

[1] Ms Nabila Naorin (the Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute in relation to her dismissal from her employment with Nationwide News Pty Ltd (the Respondent). Ms Naorin alleges she was dismissed by the Respondent on 11 December 2017.

[2] The Applicant filed her s.365 application on 12 December 2017. The general practice of the Commission is for a staff conciliator to facilitate a telephone conference to discuss s.365 applications, in an attempt to assist the parties resolve the application. In the event the application cannot be resolved between the parties, a Member of the Commission is required to determine on the material before the Member (or upon further inquiry, if necessary), if a certificate under s.368 of the Act should be issued.

[3] A telephone conciliation conference was conducted by a staff conciliator of the Commission with the parties on 18 January 2018 during the course of which terms of settlement were agreed in-principle. The agreed terms of settlement were subsequently prepared by the staff conciliator and forwarded to the Applicant and Respondent on 18 January 2018[1]. The Terms of Settlement were formally executed by the parties on 22 January 2018.

[4] It is useful to set out the key clauses in the Terms of Settlement:

3. The Applicant and the Respondent agree to fully and finally settle all matters

3.1 The Respondent will rescind the dismissal and allow the Applicant to have resigned as at 11 December 2017.

3.2 The Respondent will within 7 days of the Applicant and Respondent signing these terms of settlement provide to the Applicant, on company letterhead, a statement of service confirming the resignation and outlining the period of service of the Applicant with the Respondent, the Applicant's position with the Respondent and the Applicant's duties for the Respondent.

3.3 The parties agree that Sally Carr will be the designated contact point within the Respondent for queries relating to the Applicant's employment with the Respondent. Any information provided shall be limited to confirmation of the information contained in clause 3.2 above. If any of the Applicant's future employers contact anyone (not limited to respondents) at News through personal connections to investigate the applicant's work and resignation further, they would refer that towards point of contact, Sally Carr.

3.8 Neither the Applicant nor the Respondent will disparage or denigrate the other.

[5] Consistent with clause 3.2 of the Terms of Settlement the Respondent provided the Applicant with a Statement of Service dated 24 January 2018 which confirmed that the Applicant resigned her employment with the Respondent on 11 December 2017.[3]

[6] Subsequent to the Terms of Settlement being executed, the Applicant made a number of contacts with Commission staff regarding various matters arising out of the Terms of Settlement. The Applicant then wrote to the Commission on 13 July 2018 stating that she was unhappy with the Terms of Settlement and requested a further conference. She was subsequently advised by Commission staff in telephone calls on 7 August 2018 and 21 September 2018 that, as the matter had settled, there was no basis to re-open the matter and/or conduct a further conference.

[7] The Commission received further correspondence from the Applicant on 21 September 2018 stating that "I believe the matter was not settled. I would like the certificate to be issued." The matter was then listed for conference before me on 16 October 2018, which failed to resolve the Applicant's concerns. At the conclusion of the conference directions were issued to the parties with respect to the filing of submissions as to whether a certificate under s.368 of the Act should be issued. Both parties subsequently filed submissions.

[8] The Applicant submits that the Respondent has failed to comply with the Terms of Settlement. The Applicant claims that, contrary to clause 3.8 of the Terms of Settlement that precludes either party from disparaging each other, the Respondent has continued to disparage and denigrate her to multiple employers.

[9] The Respondent submits in reply that the parties reached an accord and satisfaction to resolve the matters by way of the Terms of Settlement and there is no basis for the Commission to now issue a certificate under s.368 of the Act.

[10] The basis of the issuing of a certificate arises under s.368(3)(a) of the Act. This section provides that:

"(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

(a) the FWC must issue a certificate to that effect; and

(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly."

[11] I am satisfied on the evidence that there was an agreement to settle the Applicant's general protections dismissal application on 18 January 2018 and that the parties subsequently formalised their agreement by executing the agreed Terms of Settlement on 22 January 2018.

[12] The requirement necessary for the issuing of a certificate pursuant to s.368(3) that the Commission be satisfied that "all reasonable steps to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful" is directed to the circumstances where the dispute has not been resolved. That is not the circumstance in the present matter. The dispute was unarguably resolved as evidenced by the executed Terms of Settlement from which the Applicant benefited.

[13] That the Applicant is now aggrieved with the alleged conduct of the Respondent, which the Respondent denies, does not alter the fact that the dispute was resolved. The Terms of Settlement amounts to an accord and satisfaction. It binds the parties to carry each of its agreed terms to execution. It also extinguishes the existing cause of action (that is, the general protections dismissal application) and replaces it with a new cause of action based on the executed Terms of Settlement.

[14] In my view, the dispute under the Act was resolved by the execution of the Terms of Settlement and the Respondent's provision of the Statement of Service to the Applicant. It follows that there is no basis to issue a certificate under s.368 of the Act and that it would be inappropriate to do so. The file in this matter will now be closed.

Applicant submissions 30 October 2018 and 12 November 2018

[1] Respondent Submission dated 6 November 2018, Annexure A - Draft Terms of Settlement

[2] Ibid, Annexure B - Terms of Settlement dated 22 January 2018

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