This concludes my role in the process. If any queries arise about implementing the terms of settlement, please contact the other party directly.

• [26] At 5:17 PM (AWST) on 1 July 2025, Hodge emailed Jongebloed thanking him for his time in the conciliation conference and noting that after the discussions with 'Max Duncan', he could prepare a deed based on the usual Commission terms with a few enhancements. The representative remarked that he would prepare the deed and send it to Jongebloed and the Applicant to review.

• [27] The Respondent submits that it provided the written settlement agreement by email to Jongebloed and the Applicant on 3 July 2025. The written settlement agreement was simple in its terms and precisely reflected the substantive elements of the agreement reached in the conciliation conference (as articulated in writing by the Conciliator) - noting that there was, within the written settlement agreement, a non-disparagement clause that was slightly varied from the Commission's standard terms.

• [28] In an email dated 25 July 2025 to Chambers and a statement of evidence signed on 2 August 2025, the Applicant expressed why she considered her unfair dismissal application should be reopened. An abridged version of that material follows:

(a) during the conciliation the Applicant gave indications that she felt overwhelmed and unable to properly participate in the negotiations with the Respondent;

(b) the Applicant advised her ASU delegate and the Conciliator multiple times that she required more time to comprehend the information;

(c) the Applicant had a self-identified panic attack in the breakout room;

(d) the Respondent's representative queried in the conference whether the Applicant was employed and after having replied that she was not, the Applicant formed the view that the Respondent was now aware that the Applicant could not financially afford further legal advice or representation if the application proceeded to court;

(e) the Respondent's representative noted in the conciliation conference that the Respondent was 'comfortable enough and had sufficient evidence to prove me wrong' and were willing to proceed, which the Applicant considers having been a scare tactic;

(f) the Applicant felt coerced into accepting the settlement agreed by her ASU delegate;

(g) the Applicant does not recall questioning or being advised that there would be no cooling off period;

(h) the Applicant states that she was unaware that the settlement agreement would be considered a legally binding arrangement; and

(i) as a mother with five children and a mortgage, the Applicant said she was conflicted in what would be more beneficial to her financial capacity in regard to the importance of the statement of service and applying for new employment positions in comparison of being compensated for loss of past wages.

• [29] The fundamental issue between the parties is whether a binding settlement agreement had been reached between the Applicant and the Respondent to settle the unfair dismissal application of the Applicant.

• [30] In Singh v Sydney Trains ('Singh'), the Full Bench of the Commission set out the legal principles relevant to the question of whether there was a binding settlement agreement. [2] The Full Bench cited the judgment of Pavlovic v Universal Music Australia Pty Limited, in which the relevant principles concerning the intention to create legal relations were traversed.[3] In short, those principles were:

• a) the question of whether the parties intended to bind themselves to a contract is to be determined objectively, having regard to the intention disclosed by the language the parties have employed;[4]
• b) where the case does not depend on the construction of a single document, there is to be an objective determination of the communications between the parties in their context, and the parties' dealing over the time leading up to the making of the alleged contract -this will inevitably entail consideration of the subject matter of the communication including what the parties said or wrote.[5]

• [31] In Singh, the matter did not involve complexities where contractual intention is inferred from behaviour or is imputed.[6] Whether there was a legally binding settlement reached between the applicant, Mr Singh and the respondent, Sydney Trains, involved the interpretation of the express written communications between the parties' solicitors.

• [32] The Full Bench observed that an offer and acceptance must precisely correspond, noting that the following principles were relevant to this requirement:

• a) An acceptance corresponds to an offer if it is an unequivocal acceptance of the terms offered.[7]
• b) An acceptance is not an unequivocal acceptance of the terms offered if it deviates from the offer, even if that deviation is not material or important. However, as a qualification to this principle, if a new term is included in a purported acceptance of an offer and the new term is solely for the benefit of the offeror, then this can constitute a valid acceptance.[8]
• c) An acceptance will be effective if it does not depart from the terms of the offer but simply repeats in the offeree's own words the effect of the offer.[9]
• d) Acceptance will be effective if it sets out expressly what would be implied by law in the absence of express agreement.[10] For example, an offer may contemplate that, were it to be accepted, a document would be prepared to record its terms. In proposing that a deed be prepared as part of an acceptance of such an offer, the offeree would be stating that which would be implied by law arising from the terms of the offer, namely, that it would be documented in some formal manner.[11]
• e) Similarly, if a purported acceptance of an offer merely includes the 'machinery of working out what was meant by the offer, it is on the same plight as a request for information'.[12] Such a request for information does not revoke the offer and may constitute acceptance of the offer.

• [33] However, the Full Bench acknowledged that ultimately the question was whether a 'reasonable recipient of the acceptance would have regarded it as corresponding to the offer or whether they would have taken the acceptance to be qualifying the original offer such that it would amount to a counter-offer or, at any rate, not an unconditional acceptance of what was originally offered'.[13] The Full Bench explained that a purported acceptance which does not correspond to the offer does not necessarily reject the first offer; it is, nevertheless, a counter-offer capable of acceptance.[14] A counteroffer accepted by the original offeror creates a binding agreement.

• [34] If parties who have been in negotiations reach agreement on terms of a contractual nature and also agree that those terms will be dealt with by subsequent formal documentation,

there are several categories into which such negotiations fall. In Masters v Cameron, the High Court held that a binding agreement could come about in the following manner:

...It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution.[15]

• [35] In Singh, the Full Bench referred to a fourth category derived from the decision in Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd ('Baulkham Hills'), where the parties intended to be bound immediately and exclusively by agreed terms while expecting to make a further contract in substitution containing, by concept, additional terms.[16]

• [36] The Full Bench continued that when parties reach an agreement of the first or fourth category referred to in Masters v Cameron and Baulkham Hills, they will be bound by the terms of their bargain, notwithstanding a later disagreement between the parties about the terms to be included in a deed or written agreement between them.[17]

Was a binding settlement agreement reached between the parties?

• [37] I am satisfied, on the basis of the evidence before me, that the parties entered into a binding settlement agreement at the conciliation conference and that the effect of this agreement was to bring an end to the Applicant's unfair dismissal application.

• [38] In reaching my conclusion, I have relied upon the evidence provided, the Commission record, and the conduct of the parties following the conciliation conference.

• [39] It is apparent from that evidence that during the course of the conciliation conference the Applicant was represented by Jongebloed. At all relevant times the Applicant had recourse to Jongebloed for the purposes of obtaining guidance and advice, in addition to making use of his advocacy. That the Applicant made use of Jongebloed's advocacy skills is evident, as will be addressed shortly.

• [40] However, it is first necessary to address the Applicant's purported mental status at the conference. As part of the Applicant's evidence, she provided several 'Certificates of capacity /certificates of fitness' (Certificate(s)), some dating back to March of this year. One of the more recent Certificates was dated 26 June 2025. It covered the period of 26 June 2025 until 24 July 2025, stating that the Applicant had no capacity to work. The Certificate set out the Applicant's diagnosis which included anxiety.

• [41] The evidence before me does not support a finding that the Applicant raised with the Conciliator that she was unfit to participate in the conference, sought an adjournment of the conciliation conference on the basis of lack of competence or ill health, or requested an adjournment during the conference, to have the conference scheduled later, on the same basis.

• [42] The Applicant stated that she gave indications that she felt overwhelmed and unable to properly participate, and that she advised Jongebloed multiple times that she required more time to comprehend the information. Whilst Jongebloed gave evidence that he could hear that the Applicant had been crying a little bit throughout the conference and that it sounded as though the Applicant was breathing heavily, perhaps hyperventilating, and may have put herself on hold having communicated a need to break out of the room, there was no suggestion from Jongebloed that the Applicant asked for an adjournment or that the Applicant lacked competence to participate in the conference albeit he noted the Applicant's confusion about the Respondent's rejection of the Applicant's offer, as detailed.

• [43] At hearing, the Applicant said that she did not remember what the Conciliator had said in respect to his summary of the outcome of the conciliation process, noting that her headspace was not the best, but she remembered having to go into breakout rooms and having a bit of a pause as she was having a bit of a panic attack. However, in her written materials, the Applicant was sufficiently astute to recall that the Respondent's representative queried if she was employed and after having replied that she was not, the Applicant formed the view that the Respondent was now aware that the Applicant could not financially afford further legal advice or representation. Further, the Applicant recalled that the Respondent's representative had, at the conciliation conference, stated that the Respondent was 'comfortable enough and had sufficient evidence to prove' the Applicant wrong. At hearing, the Applicant further explained the relevance of the 'identified position' in the statement of service, giving evidence that being in an 'identified role' was very important to her, and that prior to the conciliation conference, she had stated to Jongebloed that she wanted to ensure that she was in an 'identified role'. That is, the position of 'identified role' was on the Applicant's statement of service. The Applicant evidently had Jongebloed advocate for the inclusion of the 'identified role' in the statement of service. It follows that the evidence does not support a finding that the Applicant was unable to recall all of the conciliation conference or that her mental health precluded her from meaningfully engaging in the process with Jongebloed's assistance.

• [44] Whilst appreciative that the Applicant experienced upset during the conciliation conference and at one point felt panicked, the evidence is insufficient to ground a finding that, on balance, the Applicant lacked competence - in that her competence (or lack thereof) at the conciliation conference in some way vitiated the making of a binding agreement.

• [45] As to whether the Applicant was coerced by Jongebloed to enter into the agreement at the conciliation conference, I similarly find that not to be the case. First, it is necessary to clarify that I find that the Applicant was aware of the terms of the agreement in the conciliation conference. Second, at hearing, the Applicant appeared to question her use of the word 'coerced' in respect of Jongebloed's conduct albeit still highlighting issues that she took with his conduct. Third, Jongebloed denied having coerced the Applicant, and where there is an inconsistency between the evidence of the Applicant and that of Jongebloed, it is Jongebloed's evidence that I find more persuasive given the inconsistencies in the Applicant's oral evidence regarding her ability to recall parts of the conciliation conference, which sits somewhat contrary to her written evidence. Fourth, the Applicant was clearly able to make known to Jongebloed her position as to what was important to her; I refer particularly to the issue of the 'identified position'. Fourth, there is no suggestion that Jongebloed made threats, used force or otherwise manipulated the Applicant to accept the terms of settlement. Fifth, it is very difficult to conceive what advantage Jongebloed would gain from 'coercing' the Applicant to accept the terms of settlement.

• [46] If it was the case that the Applicant was coerced and this could be established to the requisite standard, then whilst this may render the settlement agreement voidable rather than void, whether the settlement agreement ought to be set aside on that ground is a matter for the court, not the Commission.[18]

• [47] The evidence of the Applicant and Jongebloed appears to call into question whether information was provided by the Conciliator regarding a cooling off period and/or the Respondent's position as to a cooling off period. Based on the evidence, I find there was no cooling off period agreed. No reference was made to a cooling off period in the record of the outcome of the conciliation conference as communicated by the Conciliator to the parties, a Commission record, and the email from the Respondent's representative to Jongebloed and the Applicant, again makes no reference to a 'cooling off' period.

• [48] It follows that I am satisfied, for the reasons provided, that the parties reached a binding settlement agreement on 1 July 2025.

• [49] The agreement reached was of the first category identified in Masters v Cameron in that the parties had reached agreement and intended to be immediately bound by those terms but with those terms to be put in writing in a fuller and more precise form. [19] An agreement having been reached, this is a complete answer to the Applicant's unfair dismissal application.

• [50] Section 587(1) of the Act provides that the Commission may dismiss an application:

(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.

• [51] The powers of the Commission to dismiss an application are not limited to those

specified in s 587(1) of the Act. This much is clear from the words '[W]ithout limiting when the FWC may dismiss an application...'. However, even if the powers to dismiss were so limited it would not affect my conclusion that the Applicant's unfair dismissal application has no reasonable prospects of success. In Australia Postal Corporation v Gorman, Besanko J remarked:

31 An accord and satisfaction extinguishes any cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to subsequent litigation of the original claim: it is an answer to the claim.

33 There is nothing in the [Fair Work] Act which suggests that an accord and satisfaction should not be recognised...As I have said, an accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such a cause of action is clearly capable of being considered frivolous or vexatious or without reasonable prospects of success. [20]

• [52] The Applicant's unfair dismissal application has no reasonable prospect of success and on that basis, I have decided to dismiss it.

• [53] If the Applicant believes she was coerced into reaching the agreement, she can apply to have the agreement set aside by the courts. Before doing so, the Applicant may wish to obtain professional advice as establishing coercion is a high bar to clear.

[1] PR791144.

[2] [2017] FWCFB 4562 ('Singh').

[3] Ibid [46] citing Pavlovic v Universal Music Australia Pty Limited [2015] NSWCA 313 [15] ('Pavlovic').

[4] Pavlovic [15] (n 3) citing Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353, 362 ('Masters').

[5] Pavlovic [15] (n 3) citing Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, 550 and Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309, 334, 337.

[6] Singh (n 2) [47] citing, for contrast, Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153.

[7] Singh (n 2) [48] citing Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32, [84] ('Redowood').

[8] Singh (n 2) [48] citing Boreland v Docker [2007] NSWCA 94, [76]-[78] ('Boreland').

[9] Singh (n 2) [48] citing Boreland (n 8) [76] and Cavallari v Premier Refrigeration Co Pty Ltd [1952] HCA 26; (1952) 85 CLR 20, 26-7.

[10] Singh (n 2) [48] citing Brookfield Australia Investments Limited v Lucas Stuart Pty Limited [2012] NSWSC 1130, [34] ('Brookfield').

[11] Singh (n 2) [48] citing Brookfield (n 10) [30]-[31].

[12] Singh (n 2) [48] citing Brookfield (n 10) [35], quoting Howe v Connell [1997] NSWSC 432 ('Howe'), citing Stevenson v McLean (1880) 5 QBD 346.

[13] Singh (n 2) [49] quoting Redowood (n 7) [76], citing Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115.

[14] Singh (n 2) citing Capital Securities No. 1 Pty Ltd v Saliba [2016] NSWSC 1093, [77].

[16] Singh (n 2) [53] citing Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622.

[17] Singh (n 2) citing Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1, [10]-[12] and Howe (n 12).

[18] See for example: Chapman v Ignis Labs Pty Ltd [2020] FWCFB 3849 [29].

[19] [1954] HCA 72; (1954) 91 CLR 353, 360.

[20] [2011] FCA 975; (2011) 196 FCR 126, 133-4 [31], [33].

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