1
Fair Work Act 2009
s.604 - Appeal of decisions
Donna McMahon
v
Ventura Bus Lines Pty Ltd
(C2020/4927)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ASBURY
COMMISSIONER BOOTH
SYDNEY, 26 OCTOBER 2020
Appeal against order PR720022 of Commissioner Bissett at Melbourne on 9 June 2020 in
matter number U2020/2324.
Background
[1] Ms Donna McMahon has applied under s 604 of the Fair Work Act 2009 (FW Act) for
permission to appeal against an ex tempore decision of Commissioner Bissett given on 9 June
2020. In the decision under appeal, the Commissioner dismissed the Appellant’s unfair
dismissal application pursuant to s 587(1)(c) of the FW Act, finding that the application had
no reasonable prospects of success because a binding settlement had been reached when Ms
McMahon’s employment ended.
[2] The appeal was listed for hearing by telephone at 2.00 pm on 4 August 2020 in
relation to whether permission to appeal should be granted. At 1.00 pm on 3 August, Ms
McMahon sought an adjournment on the basis that the COVID-19 pandemic prevented her
from being in a room with her representative for the purpose of providing instructions. The
adjournment was refused on the basis that it was not necessary for Ms McMahon and her
representative to be in the same room for the purposes of communicating instructions, and the
parties were advised that in any event necessary adjournments for such a purpose could be
sought during the hearing of the appeal if required. Ms McMahon and her representative did
not respond to attempts to contact them concerning their participation in the listed hearing,
and the hearing ultimately proceeded in their absence.
[3] The background to the matter is that Ms McMahon made an unfair dismissal
application on 28 February 2020 concerning the termination of her employment with Ventura
Bus Lines Pty Ltd (Ventura). In her Form F2 application, Ms McMahon outlines an incident
with a passenger which resulted in her being required to attend a meeting with Ventura’s
Human Resources Manager, a management representative and representatives of the
Transport Workers’ Union of Australia (TWU). Ms McMahon also states that she was
[2020] FWCFB 4853
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 4853
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distressed during the meeting and was informed that her employment was to be terminated.
Ms McMahon further states that Ventura’s Human Resources Manager advised her that she
should sign a “Settlement and Release Agreement” (settlement agreement) in order to be paid
five weeks wages. Ms McMahon signed the settlement agreement but asserts that it was not
properly explained to her and that she was crying so much she was unable to read anything.
An undated document entitled “Settlement and Release Agreement” signed by Ms McMahon
was appended to her Form F2 application. The settlement agreement provides that:
“The decision to terminate the Employment shall be replaced by and recorded on the
Employee’s employment file as the Employee’s resignation from the employment and
this Agreement shall, once executed by the Employee, serve as the Employee’s notice
of resignation with such resignation to take effect from 11 February 2020.”
[4] The settlement agreement also provides that the employee releases the employer from
all claims and liability arising from the employment, the termination and/or the resignation of
the employee. Further, the settlement agreement requires the employer to provide a statement
of service and five weeks’ wages in lieu of notice in addition to statutory entitlements, and
contains non-disparagement and confidentiality terms.
[5] In its Form F3 response to the application filed on 13 March 2020, Ventura objected to
the application on the grounds that Ms McMahon had not been dismissed and had entered into
a binding settlement pursuant to which she had chosen to resign her employment and had
been paid five weeks wages in lieu of notice.
[6] The Commissioner listed the matter for mention by telephone on 9 June 2020, and
stated to the parties by email that the purpose of the mention was to hear submissions from
the parties as to why the Commissioner should not dismiss Ms McMahon’s unfair dismissal
application on the basis that it had no reasonable prospects of success due to a settlement
agreement having been reached between the parties.
[7] At the listed mention, Ms McMahon tendered a statement of evidence and gave
additional oral evidence in chief led by her representative. She was also cross-examined and
her representative was given an opportunity to re-examine her after the completion of cross-
examination. The transcript also indicates that the Commissioner asked Ms McMahon a
number of questions during the hearing, which she answered.
[8] The transcript indicates that a resignation letter allegedly signed by Ms McMahon was
emailed by Ventura to the Commissioner and to Ms McMahon during the hearing. Ms
McMahon maintained that she could not recall signing the resignation letter. She asserted in
her evidence and via her representative:
at the point she signed the settlement agreement she believed she had already been
dismissed;
she was upset when she signed the settlement agreement and did not read its terms
before signing;
the terms were signed under duress;
she did not understand the terms; and
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the terms were not properly explained to her.
[9] Ms McMahon confirmed in her evidence that a State Organiser of the TWU and a
TWU workplace delegate represented her at the meeting on 11 February 2020, and that she
was shown video footage of the incident that Ventura relied on in deciding to terminate her
employment before she signed the settlement agreement. She also confirmed that she was
advised by the Organiser of her options – that Ventura had decided to dismiss her but that he
would obtain five weeks’ pay for her if she signed the settlement agreement. She agreed that
she signed the settlement agreement and that she received five weeks’ pay in lieu of notice.
[10] The Commissioner also had a number of exchanges with Ms McMahon’s
representative. In response to a question from the representative about whether the
Commissioner “accepted the agreement”, the Commissioner stated that the agreement exists
and is signed and that the Commission did not have the power to enforce or set aside
agreements.1 In response to a question from the Commissioner about what Ms McMahon was
seeking at the hearing, her representative said that she sought a hearing before the
Commission to determine whether the terms of settlement signed by her were lawful or valid.
[11] Ventura made submissions in which it placed reliance on the settlement agreement,
and cited the Federal Court judgment of Besanko J in Australian Postal Corporation v
Gorman2 in support of the proposition that the settlement agreement was an accord and
satisfaction which extinguished Ms McMahon’s right to pursue an unfair dismissal
application. In oral submissions, Ventura raised the possibility of the Commission staying the
unfair dismissal application pending Ms McMahon deciding if she wished to pursue action in
a court to set aside the settlement agreement, but maintained that the Commission did not
otherwise have jurisdiction to deal further with the unfair dismissal application.3
The decision
[12] The Commissioner expressed a view that the signature on the resignation letter was
similar to Ms McMahon’s signature on her witness statement for the proceeding, and then
went on to determine the matter as follows:
“THE COMMISSIONER: Yes, well thank you. Look, it is my view on the basis of the
concessions that are made by Ms McMahon, that there is a binding settlement
agreement that was signed by the parties. It is my view that that agreement has been
executed, the money has been paid and Ms McMahon has signed a resignation letter.
In that respect, on the basis of the authority of the Commission and the courts, I would
have to conclude that that agreement, in effect, extinguishes all - or finalises the unfair
dismissal application. The only action that is available - sorry, I'll just withdraw that.
So the agreement that's been signed by the parties has the effect of ending the unfair
dismissal application and for that reason, the unfair dismissal application has no
1 Transcript 9 June 2020, PNs 154 – 159.
2 [2011] FCA 975, 196 FCR 126, 211 IR 450
3 Transcript 9 June 2020, PN 164.
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reasonable prospect of success. It's my view that the application should be dismissed
in those circumstances.
If it is that the agreement was signed under duress an application to have the
agreement set aside can't be dealt with by the Commission and is a matter that would
need to be resolved in the court. If the court finds that the agreement is invalid, then
correspondence back to the Commission I suspect will then resolve in further
consideration of the application for unfair dismissal. Although it may require, Mr
Keighery, a fresh application being made.
MR KEIGHERY: Yes.
THE COMMISSIONER: But we can deal with that problem if we need to deal with
it. But it is my view that the application can't succeed; it has no reasonable prospects
of success given the current circumstances, and for that reason I have to dismiss the
application of Ms McMahon.”4
[13] The Commissioner went on to inform Ms McMahon and her representative that if an
application to a court to set aside the terms of settlement was successful, Ms McMahon could
make a fresh application to the Commission for an unfair dismissal remedy but would be
required to seek an extension of time in which to make such application.5 The transcript
records that the Commissioner explained why this was the outcome she had determined and
that Ms McMahon and her representative indicated their understanding in relation to the
explanation provided by the Commissioner.6 On 9 June 2020, the Commissioner issued an
order dismissing Ms McMahon’s unfair dismissal application pursuant to s. 587(1)(c) of the
FW Act.7
Grounds of appeal and submissions
[14] The appeal grounds set out in Ms McMahon’s notice of appeal are as follows:
“1. Hearing incomplete. Evidence under oath by Applicant only.
2. No statements made by Respondent.
3. Evidence submitted by Applicant that the agreement should be declared null
and void.
4. Commissioner Bissett declares she does not have the power to set the
agreement aside yet rules in favour of the agreement despite evidence that the
agreement was not complied with.”
[15] In relation to permission to appeal and the public interest, Ms McMahon’s notice of
appeal states:
“Commissioner Bissett held the mention knowing that she did not have the power to set
the agreement aside. A statute overrides a contract. (The Applicant is on Centrelink
4 Transcript 9 June 2020 PNs 176 - 180.
5 Transcript 9 June 2020 PNs 183 – 185.
6 Transcript 9 June 2020 PN 186.
7 PR720022.
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now). No opportunity was given to the Applicant to seek independent legal advice
(Section 11) before signing the agreement – this was not denied by the Respondent.”
[16] In her written submissions concerning permission to appeal, Ms McMahon contends
that:
prior to the hearing before the Commissioner, she was informed that the matter would
be “heard and determined” at the hearing on 9 June 2020;
no witnesses (other than herself) gave evidence and “there was basically no evidence
in chief, no cross-examination and no re-examination”;
her representative was unable to lead her through her sworn statement and Ventura’s
representative was not permitted to cross-examine her because the Commissioner
stated that she did not have the power to hear the matter;
the Commissioner had “made an order from a hearing that she didn’t have the power
to hear”;
the settlement agreement was not valid; and
the settlement agreement states that Ms McMahon acknowledges that she has obtained
independent legal advice in relation to the terms of the agreement when this was not
the case.
[17] Ventura reiterated its submissions at first instance that the settlement agreement is
valid and binding and can be set aside only by a court. Ventura also submitted that the
settlement agreement was facilitated by two experienced TWU representatives, explained to
Ms McMahon, and signed by her following that explanation.
Consideration
[18] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker.8 There is no right to appeal and an appeal may only be made with the
permission of the Commission.
[19] This appeal is one to which s 400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from
a decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in
relation to a matter arising under this Part can only, to the extent that it is an appeal on
8 This is so because on appeal the Commission has power to receive further evidence, under s.607(2); see Coal and Allied v
AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
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a question of fact, be made on the ground that the decision involved a significant error
of fact.
[20] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v
Lawler and others9 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed)
characterised the test under s.400 as “a stringent one”. The task of assessing whether the
public interest test is met is a discretionary one involving a broad value judgment.10 A Full
Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin,11 identified some
of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters.”12
[21] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appealable error.13 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.14
[22] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.15
However, it is necessary to engage with those grounds to consider whether they raise an
arguable case of appealable error.
[23] In accordance with the above principles, it is necessary for us to consider whether Ms
McMahon’s grounds of appeal disclose any reasonably arguable cause of appealable error.
Grounds one and two concern the hearing of the matter and may best be read as alleging a
denial of procedural fairness on the basis that the hearing was “incomplete” and that the
Commissioner erred in failing to hear evidence from witnesses for Ventura. In our view,
neither ground can be sustained. Notwithstanding that the matter appears to have been listed
for mention, the parties were clearly informed, by email dated 25 May 2020 and at the outset
of the hearing, that its purpose was to determine why the Commission should not dismiss Ms
9 [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43].
10 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v
Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied
Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
11 [2010] FWAFB 5343, 197 IR 266.
12 Ibid at [27].
13 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
14 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR
388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78,
207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation
Office [2014] FWCFB 1663, 241 IR 177 at [28].
15 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
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McMahon’s unfair dismissal application on the basis that it had no reasonable prospects of
success due to the existence of the settlement agreement. In those circumstances it was not
necessary for Ventura to call evidence or to make various witnesses available for cross-
examination. It was entitled to rely, as it did, upon the terms of the settlement agreement.
[24] Ms McMahon’s contention that her representative was not able to lead her through her
evidence, or that she was not cross-examined, is wrong. It is clear from the transcript that Ms
McMahon’s representative did lead her through her evidence and that she was cross-
examined. The transcript further evidences that the Commissioner asked Ms McMahon a
number of questions and that she was not prevented from advancing her evidence,
notwithstanding the Commissioner’s ultimate conclusion in relation to the settlement
agreement.
[25] Grounds 3 and 4 of the notice of appeal concern the Commissioner’s reliance on the
settlement agreement to dismiss Ms McMahon’s unfair dismissal application. As earlier
stated, the application was dismissed by the Commissioner pursuant to s 587 of the FW Act,
which provides as follows:
587 Dismissing applications
(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
(b) the application is frivolous or vexatious; 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:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
[26] In Australian Postal Corporation v Gorman16 the Federal Court confirmed that,
pursuant to s 587 of the FW Act, the Commission may dismiss an unfair dismissal application
16 [2011] FCA 975, 196 FCR 126, 211 IR 450
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where a binding settlement agreement exists.17 Accordingly there is no question that the
Commissioner had the power to dismiss Ms McMahon’s application on the basis that it had
no reasonable prospects of success because of the existence of a settlement agreement.
[27] In Masters v Cameron18 the High Court said the following in relation to when a
binding settlement agreement will exist:
“Where parties who have been in negotiation reach agreement upon terms of a
contractual nature and also agree that the matter of their negotiation shall be dealt with
by a formal contract, the case may belong to any of three cases. 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.”19
[28] Ms McMahon herself tendered the settlement agreement and did not dispute that she
had signed it. As above, we note that the terms of settlement include an obligation to make
payment of the settlement sum, the cessation of Ms McMahon employment to be
characterised as a resignation, provision to Ms McMahon of a statement of service, a release
from liability, and confidentiality and non-disparagement provisions.
[29] The Commissioner concluded that a binding settlement agreement had been reached
between the parties at the meeting on 11 February 2020 and on that basis determined that the
application had no reasonable prospects of success. We have not identified any appealable
error in the Commissioner’s approach in this regard and in our view the conclusion is correct.
The terms of the settlement agreement speak for themselves and it is apparent that the parties
had reached finality in arranging the terms of their bargain and intended to be immediately
bound by those terms. The parties had also gone further and set out those terms in a written
form. Ms McMahon signed the settlement agreement. As a result, her pre-existing cause of
action was extinguished and the continued pursuit of her unfair dismissal application was
without reasonable prospects of success, as that phrase is contemplated in s 587(1)(c) of the
FW Act. The Commissioner properly exercised her power to dismiss the application on this
basis and no appealable error is disclosed.
17 See also Curtis v Darwin City Council [2012] FWAFB 2021
18 [1954] HCA 72, 91 CLR 353
19 Ibid at 360
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[30] Grounds 3 and 4 of the appeal do not challenge the Commissioner’s finding as to the
existence of the settlement agreement; rather, they concern the contentions that the
Commissioner should have set aside the settlement agreement on the ground that it was
entered into under duress and without the benefit of legal advice, or not relied upon in
circumstances where is was said not to have been complied with.
[31] We do not consider that these grounds of appeal disclose any arguable case of
appealable error. Firstly, as the Commissioner made clear to Ms McMahon and her
representative at first instance, the Commission does not have the power to set aside a binding
settlement agreement. That is a matter for the courts, not this Commission. Secondly and in
any event, it is clear that the effect of duress, should it be established, would be to render the
settlement agreement voidable, rather than void.20 Thirdly, there was no evidence we can
identify of any non-compliance with the settlement agreement by Ventura, and in any event
Ms McMahon is entitled to seek enforcement of the terms of the settlement agreement in a
court.
[32] Having considered all the matters raised by the Appellant with respect to permission to
appeal, we are not persuaded that Ms McMahon has identified any arguable case of error in
the Commissioner’s decision such as to enliven the public interest. Nor are we satisfied that:
there is a diversity of decisions at first instance so that guidance from an
appellate body is required;
the appeal raises issues of importance and/or general application;
the decision at first instance manifests an injustice, or the result is counter
intuitive; or
the legal principles applied by the Commissioner were disharmonious when
compared with other decisions dealing with similar matters.
Conclusion
[33] For the reasons set out above, we are not satisfied that the grant of permission to
appeal would be in the public interest. Accordingly, permission to appeal must be refused in
accordance with s 400(1).
20 Gibbons v Wright [1954] HCA 17, 91 CLR 423; see also R Bigwood ‘Coercion in Contract: The Theoretical Constructs of
Duress’ (1996) 46 The University of Toronto Law Journal 201 at 208
OF THE FAIR WORK MISSION THE
[2020] FWCFB 4853
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VICE PRESIDENT
Appearances:
No appearances for the Appellant.
Mr D Wood for the Respondent.
Hearing details:
2020.
Sydney (via video-link):
4 August.
Printed by authority of the Commonwealth Government Printer
PR722665
