1
Fair Work Act 2009
s.394—Unfair dismissal
Vesna Dokic
v
Multicultural Communities Council Gold Coast Limited
(U2022/1559)
COMMISSIONER BISSETT MELBOURNE, 14 JUNE 2022
Application for an unfair dismissal remedy – matter settled at conciliation – request to
reopen – where a binding agreement existed – application dismissed.
[1] Ms Vesna Dokic (Applicant) has made an application to the Fair Work Commission
pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which she seeks a remedy for unfair
dismissal. Ms Dokic was employed by the Multicultural Communities Council Gold Coast
Limited (Respondent). The Applicant has made a request that her application be listed for
arbitration. The Respondent objects on the grounds that a binding settlement agreement was
reached between the parties that fully settled the Applicant’s claim.
[2] There is no dispute between the parties as to the background to the request of the
Applicant that her application be heard.
[3] The application for unfair dismissal, when first made, was subject to conciliation before
a staff conciliator on Friday 8 April 2022. An agreement was apparently reached at the
conciliation with the Respondent to send the terms of that agreement in writing to the Applicant
following the conciliation.
[4] On 8 April 2022 the Respondent’s representative, Mr Mark Curran, sent an email to the
Applicant that said:
Dear Vesna,
I understand that Alex is not available today.
Our client makes the following offer of settlement:
1. The Respondent will pay the Applicant the sum of $10,764.64 less tax
(settlement sum) within 7 days of the settlement agreement below being
signed by all parties;
2. The Respondent on the one hand and the Applicant on the other will enter
into a settlement agreement whereby:
[2022] FWC 1417
DECISION
AUSTRALIA FairWork Commission
[2022] FWC 1417
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a. the Applicant releases, discharges and indemnifies the
Respondent from any claim or proceeding, which the Applicant
has had, now or may in the future have against it arising out of or
relating directly or indirectly to the Applicant’s employment with
the Employer (including any actions for damages for personal
injuries arising out of or sustained as a result of the employment,
whether in negligence or otherwise), the Proceedings, the
termination of that employment, any employment agreement
between the parties, any employee entitlements of any kind or
any other matter whatsoever;
3. The Settlement deed will contain mutual confidentiality and non-
disparagement obligations;
4. The Respondent will provide the Applicant with a statement of service;
5. Within 7 days of receiving the settlement sum, the Applicant will
discontinue the Proceedings.
This offer is open for written acceptance.
Mark
Mark Curran | Principal
Gilchrist Connell
[further details redacted]
[5] That email was also copied to Mr Alex Smith (presumably the “Alex” referred to in the
email).
[6] The Applicant replied on 8 April 2022 as follows:
Hi Mark,
I can confirm that I accept this offer. I have signed the email offer. Please see attached.
Thank you.
Kind Regards,
Vesna Dokic
[2022] FWC 1417
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[7] The Applicant included a copy of the email from Mr Curran (reproduced immediately
above) with a notation inserted as follows:
[8] On 8 April 2022 the Applicant also sent an email to the conciliator which said:
Hi [conciliator],
Thank you for your email.
I have accepted the offer and sent confirmation email to Mark.
Appreciate your help and your time.
Kind regards,
Vesna Dokic
[9] Following receipt of this email the conciliator sent a letter to the parties confirming that
the parties “reached a settlement agreement…and…that the terms of settlement have been sent
out by the Respondent.”
[10] On Monday 11 April 2022 Mr Curran sent an email to Mr Smith and the Applicant in
which he said:
Hi Alex,
I understand you may not be acting for Ms Dokic anymore but as you are still on the
record I am sending this email to you and copying Ms Dokic.
Please find attached a proposed settlement agreement for your consideration.
Please have Ms Dokic sign the agreement in the presence of a witness and returned me
if it is in order.
Regards,
Mark
Mark Curran | Principal
[further details redacted]
5. Within 7 days of receiving the settlement sum, the Applicant wil discontinue the Proceedings. This offer is open for written acceptance. I can confirm That I accept This offer. Dovic Regards Vesna Dovic Mark
[2022] FWC 1417
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[11] Attached to the email was a more formal copy of the settlement agreement that had been
detailed in the email to the Applicant on 8 April 2022. This more formal copy of the Agreement
had the following contents:
Recitals.
An interpretations clause dealing with Australian dollars, that the “recitals” are to
be used in interpreting the agreement and that a reference to an employment
agreement include any variation thereof.
A payment and discontinuance clause. The payment amount reflected that at
paragraph 1 and discontinuance of the proceedings at paragraph 5 of the email of
8 April 2022.
A release clause reflecting that at paragraph 2a of the email of 8 April 2022 with an
additional paragraph reflecting that the release could be pleaded as a bar to
proceedings.
A confidentiality clause and non-derogation clause which were more expansive
than that in the 8 April 2022 email.
A clause to the effect that the parties would meet their own costs, an
acknowledgements clause, a counterparts clause and a severability clause.
[12] On 13 April 2022 the Applicant sent an email to Mr Curran as follows:
Hi Mark,
Thank you for your email.
Just to confirm that I have rejected the proposed settlement agreement offer.
Kind regards,
Vesna Dokic
Request to have application heard
[13] On 13 April 2022 the Applicant sent an email to the conciliator in which she said she
had rejected the offer of the Respondent and advised the Respondent and its representative of
this. The conciliator contacted the Applicant and told her that, as she had accepted the offer, the
file had been closed and a request to reopen it would have to be put in writing.
[14] On 14 April 2022 the Applicant sent an email to the Commission in which – after
outlining some views on the COVID-19 vaccination – she said:
[2022] FWC 1417
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I was unduly pressured into a conditional settlement by [name redacted] the conciliator
and was told I would be given till Wednesday 13/04/2022 close of business day to accept
the offer.
As per above I have come to the realisation that the offer is grossly inadequate and fails
to give any form of justice. Upon my contacting the employers lawyer and rejecting the
offer I was contacted by [the conciliator] via phone around 3:45 pm QLD time on
13/04/2022 and I was told the file had already been closed reason being the case was
settled clearly this is an error of judgment on behalf of [the conciliator] as the settlement
agreement wasn’t signed by me at any time and the offer was rejected within the
required time frame, it is hereby requested it be reopened and taken to a hearing.
Thank you.
Kind regards,
VESNA
[15] A copy of this email was sent to the Respondent on 14 April 2022 who provided, in
reply, much of the (undisputed) background information outlined above.
[16] Following the receipt of material from the Respondent, Mr Smith (who was listed on
the Form F2 – unfair dismissal application as the Applicant’s representative) sent an email to
the Commission and Mr Curran on 20 April 2022 in which he said:
The Applicant was unrepresented at conciliation.
Realising she was in “over [her] head” the Applicant sought assistance from
Mr Smith during the conciliation but this was denied however the Applicant was
given a 3 day cooling off period.
The Applicant was “emotionally overwhelmed” at the conciliation and afterwards
and “made poor decisions accordingly”.
The 3 day cooling off period was granted “by law”.
The Applicant deserves a fair and balanced hearing “in the interest of justice”.
[17] The Respondent advised by email on 21 April 2022 that:
The Applicant was represented by Kausikkumar Desai at the conciliation.
The letter from the conciliator on 8 April 2022 did not mention a cooling off period.
The conciliator reconvened all parties together at the end of the conference and
confirmed the settlement agreement. No mention of a cooling off period was made.
A cooling off period is not mandated by the FW Act or any other law.
[2022] FWC 1417
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Further submissions and hearing
[18] The request of the Applicant to have her unfair dismissal application heard was listed
for a Mention on 4 May 2022. At the Mention I raised with the parties the content of a file note
on the Commission’s electronic file. That file note (see below) was subsequently sent to the
parties along with a request for the parties to advise what I should take from the file note and
their preference as to how the matter should be progressed. The file note was relevant as it went
to matters raised directly by the Applicant and by Mr Smith in various correspondence to the
Commission.
[19] The file note – entered by the conciliator on the day of conciliation – said:
A - Vesna - advised conciliator at commencement of conference that I should not dial
in Alex Smith as he was not repping and Kaushik Desai would speak on her behalf
instead. t/c to Alex during conference, with A on line, to advise him of this. Vesna to
advise by COB Wed as to whether matter has settled. A req email to her account rather
than to Alex. Advised her that she should tell Alex to file notice no longer repping.
[20] In response to the request of the Commission the Respondent said in an email of 11 May
2022 that:
1. It was content for the Commission to determine the request of the Applicant on
the basis of the material filed.
2. The Applicant’s claim that she was told she had until close of business 13 April
“to accept the offer” is in contrast to the file note of the conciliator which says
that the Applicant was to advise by close of business Wednesday “as to whether
the matter has settled” and the email from the conciliator to the Applicant on
8 April 2022 which relevantly said “[p]lease let me know by COB Wednesday,
13 April 2022 whether the matter has been resolved”.
3. The Respondent’s offer to the Applicant was accepted by the Applicant on
8 April 2022.
[21] The Applicant, in her reply email of 11 May 2022, said:
1. She wished to have a hearing.
2. “Please be advised as already stated clearly a language barrier created a
misunderstanding as also stated the offer was accepted on the understanding that
I had till close of business on 13/04/2022 to sign the actual contract in question.
based on current claim by the respondent it is clearly evident that I was under a
mistaken belief of fact that only upon signing the actual contract was I bound by
the agreement.
Once again, a clear misunderstanding due to language barrier and not
understanding the process and fully understanding the current claimed pre
contract agreement.
[2022] FWC 1417
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It is very reasonable to accept had I not been under the misunderstanding of what
the request of notifying by the 13/04/2022 actually meant , I would certainly not
have sent the pre contract email. The Conciliator erred by the act of closing the
case prior to the agreed date of the 13/04/2022.”
[22] On the basis of the request of the Applicant, the request to have her application for unfair
dismissal heard – and the Respondent’s counter claim that the application should be dismissed
as it has no reasonable prospects of success – was listed for hearing before me on 27 May 2022.
In so doing I provided the parties with an opportunity to put submissions in writing as to whether
a binding settlement agreement had been reached.
[23] The Applicant’s submissions, provided on 18 May 2022, are that:
Mr Smith was not permitted to join the conciliation about 30 minutes after it started.
A language barrier created a misunderstanding such that she thought she had until
13 April 2022 to sign the contract and she confused the settlement terms with the
contract proper.
Had she understood what was required to be notified by 13 April 2022 she would
not have signed the email of 8 April 2022.
She was under a mistaken belief that she would be bound by the agreement only on
signing the actual contract.
The conciliator erred in closing the file.
[24] In oral submissions Mr Smith, for the Applicant, said that a cooling off period was
granted, the Applicant had a language barrier and had a friend interpreting for her and because
she had a friend she did not need an interpreter, the Applicant and her friend did not understand
what was going on and the Applicant was under pressure at the conciliation.
[25] Mr Smith further submits that the Respondent’s view of the Applicant’s state of mind
at the conciliation is not relevant.
[26] The Respondent, in its submissions of 23 May 2022 said:
The parties reached agreement in conciliation as to the terms of settlement of the
Applicant’s claim.
The Respondent sent an email to the Applicant containing the proposed terms. The
Applicant replied by email adding a hand written note that she accepted the offer
and attached her signature to that email. This acceptance resulted in a binding
settlement agreement.
[2022] FWC 1417
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The Respondent sent the terms of the settlement agreement to the Applicant asking
that they be signed and returned. However the Applicant replied that she had
rejected the proposed terms.
[27] In these circumstances the Respondent submits that an agreement was concluded
between the parties and the agreement is of the first or second category of agreement identified
in Masters v Cameron1. Further, the Respondent relies on the decision on Australian Postal
Corporation v Gorman2 (Gorman) in support of its submissions that the initial cause of action
(the unfair dismissal application) is extinguished by the agreement reached.
[28] The Respondent relies on the decision of Commissioner Asbury in Banister v
Queensland Rail Limited3 to support it submission that, even though the Applicant’s signature
may not have been witnessed, this did not alter that an agreement had been reached.
[29] The Respondent submits that there was no cooling off period provided to the Applicant
and this was clear (by omission of any mention of the existence of a cooling off period) in the
conciliator’s letter to the parties on 8 April 2022.
[30] In reply to the specific submissions of the Applicant, the Respondent said:
The Applicant was represented in conciliation by Kaushikkumar Desai. Further,
Mr Smith was copied into correspondence from the Respondent to the Applicant on
8 April 2022.
There was no communication from the Commission that the Applicant had until
13 April 2022 to sign the contract.
The Applicant had not raised a language barrier prior to her submissions and did
not indicate in her unfair dismissal application or otherwise that she needed an
interpreter.
[31] The Respondent submits that, ultimately, the Applicant has just changed her mind.
[32] Mr Curran for the Respondent emphasised these submissions in oral submissions. He
also noted that the “formal” document sent to the Applicant on 11 April 2022 was the same as
that of 8 April 2022. Further, he submits that the agreement reached between the parties at
conciliation was not subject to the written terms being agreed such that an agreement was struck
in conciliation.
1 (1954) 91 CLR 353
2 [2011] FCA 975
3 Bannister v Queensland Rail [2012] FWA 3973
[2022] FWC 1417
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Consideration
[33] In Singh v Sydney Trains4 the Full Bench of the Fair Work Commission set out in detail
the legal principles in relation to the offer and acceptance of a settlement proposal. Relevant to
the matter before me are the following:
Whether the parties intended to be bound by the agreement reached in conciliation
is to be determined objectively5.
An offer and acceptance must precisely correspond6.
Conduct of the parties after making the purported agreement is relevant. Such
conduct may be considered in order to determine whether the prior dealings gave
rise to a binding contract7.
[34] If parties have reached an agreement in negotiations and intend the terms of that
agreement to be reflected in a written contract the agreement can fall into one of four categories.
Three of these were identified by the High Court in Masters v Cameron as follows:
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 classes. 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.8
[35] In Baulkham Hills Private Hospital v G R Securities Pty Ltd9 (Baulkham Hills) it was
said that there is a fourth type of agreement 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.
[36] Where the parties reach an agreement of the first kind described in Masters v Cameron
or the fourth kind as described in Baulkham Hills they will be bound by the terms of their
4 [2017] FWCFB 4562
5 Ibid at [46] citing Masters v Cameron
6 Ibid at [48]
7 Ibid at [51]
8 Masters v Cameron 91 CLR 353 at p.360
9 Baulkham Hills Private Hospital v G R Securities Pty Ltd and Others (1906) 40 NSWLR 622
[2022] FWC 1417
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bargain notwithstanding a later disagreement between them of the terms to be included in the
written agreement.10
[37] The additional factor to be determined in this case is if the Applicant was given a cooling
off period and I deal with that first.
[38] A “cooling off period” can generally be described as a period during which, a signatory
to a contract or agreement can withdraw from that contract or agreement without any legal
repercussions even after they've signed it.
[39] I am not satisfied that a cooling off period was granted to the Applicant. It is certainly
not the case that one is granted “by law” or that the FW Act provides a cooling off period.
Whether a cooling off period was otherwise granted by the conciliator or by agreement with the
Respondent is a matter to be determined on the basis of the material before the Commission.
[40] The correspondence from the conciliator to the parties following the conciliation on
8 April 2022 said, in its opening paragraphs:
Case name Mrs Vesna Dokic v Multicultural Communities Council GC
Case number U2022/1559
Thank you for your participation in today’s conciliation in the above case. I confirm that
you reached a settlement agreement and I confirm that the terms of settlement have been
sent out by the Respondent.
As this is an agreement reached between the parties, you must send your signed terms
to the other party. Do not send a copy to the Commission as we do not keep any record
of your agreement. You should however keep a signed copy of the agreement for your
records. Any resignation or statement of service (if applicable) should be sent directly
to the relevant party, not to the Commission.
[41] The standard correspondence from a conciliator to parties following conciliation will
advise firstly if a settlement agreement has been reached and, second, whether a cooling off
period applies. Such correspondence ensures that the parties are aware of their rights and
obligations.
[42] In this case a cooling off period was not identified to apply.
[43] In reaching my conclusion I have also taken into account and considered that the
conciliator sent the letter confirming agreement had been reached after the conciliator had
received advice from the Applicant by email, that she had “accepted the offer and sent
confirmation email to Mark [Curran]. Appreciate your help and your time. Kind regards
Vesna Dokic” [My emphasis]. This suggests that what was asked of the Applicant by the
Conciliator in the correspondence considered below was that she advise if she had reached
agreement and no more. This is markedly different to correspondence that might advise a party
10 Singh v Sydney Trains [2017] FWCFB 4562 at [54]
[2022] FWC 1417
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that they have a 3 day cooling off period within which they might indicate they no longer wished
to continue with an agreement already reached.
[44] There is nothing in the material before the Commission that suggest that, prior to the
Applicant’s email to Mr Curran on 8 April 2022 where she attached her signature to the offer,
the Applicant had accepted an offer verbally put such that a colling off period was warranted
or necessary. A cooling off period is an opportunity for a person to legally back out of a contract
already finalised.
[45] To the extent the Applicant relies on correspondence she received from the conciliator
and the file note to support her claim that she was granted a cooling off period, I accept that the
email from the conciliator to the Applicant on 8 April 2022 may have caused some confusion
but do not consider this warrants any alternative conclusion as to the cooling off period. That
email reads:
Dear Vesna,
As discussed at today’s conciliation, the Respondent said they have sent their settlement
terms to you. I will hold the file to allow you to time consider it. Please let me know by
COB Wednesday, 13 April 2022 whether the matter has been resolved. [My emphasis]
[46] This language (“whether the matter has been settled”) is reflected in the file note (see
paragraph [19] above). That email, importantly however, does not indicate that the Applicant
has already accepted an offer and has a number of days to change her mind.
[47] This email from the conciliator was sent to the Applicant prior to her advising the
Respondent and the conciliator separately that she accepted the offer. That is, to the extent the
conciliator indicated she would hold the file open to allow the Applicant to consider the
Respondent’s terms, by her reply advising she had accepted the offer, the Applicant had
concluded the time she would use to consider the offer.
[48] Neither the actions of the conciliator, Respondent nor Applicant are indicative of any
party operating on the basis that a cooling off period was operational until 13 April 2022.
[49] There is nothing in the correspondence from the Applicant to the conciliator that
suggests she was under any duress when she sent her email to the conciliator on 8 April 2022
in which she indicated she had accepted the Respondent’s offer. Further, there is no evidence
that the Applicant was under any duress when she added her signature to the details of the offer
sent to her by Mr Curran on 8 April 2022 and returned the email to him. I also note that the
emailed offer the Applicant signed on 8 April 2022 was also copied to Mr Smith. The Applicant
had time to consult with Mr Smith if she was confused or under duress although I note there is
nothing in the email from Mr Curran on 8 April 2022 that suggests the offer put had to be
accepted then and there or even that day such that might warrant a claim of “duress”.
[50] There is also nothing in the Form F2 - unfair dismissal application to suggest there was
any language barrier that would adversely affect the Applicant’s participation in Commission
proceedings and no submission has been made that anyone was interpreting for her such that a
language issue might validly arise.
[2022] FWC 1417
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[51] As to the participation of Mr Smith in these proceedings, the Applicant advised the
conciliator (as indicated in the file note) that Mr Smith would not be representing her at the
conciliation but rather Mr Desai would “speak on her behalf”. There is no question that
Mr Desai was present in the conciliation. It is also apparent that Mr Smith was copied into the
email of 8 April 2022 from Mr Curran to the Applicant in which the terms of settlement were
outlined. Neither the Applicant nor Mr Desai sought to have the conciliation adjourned until
Mr Smith was available and no criticism can be levelled at the conciliator for not wanting to
have Mr Smith hoping in and out of the conciliation.
[52] Having determined that there was no cooling off period in operation I am satisfied that
the Applicant reached a binding settlement agreement with the Respondent at the latest by her
return of the 8 April 2022 email to the Respondent where she indicated acceptance and then
attached her signature to the terms of that offer.
[53] That the Applicant’s signature was not witnessed in this correspondence does not alter
my view that an agreement was reached.
[54] I am satisfied that the agreement reached between the Applicant and Respondent
corresponds to either the first or fourth category identified above.
Disposition
[55] Section 587 of the FW Act states 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.
[2022] FWC 1417
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[56] In Gorman11 Besanko J said:
An accord and satisfaction extinguishes the existing 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 the subsequent litigation of the original claim; it is an
answer to the claim.
[57] That is, having reached an agreement to settle the unfair dismissal application (the
accord and satisfaction), the settlement agreement has brought the unfair dismissal application
to an end.
[58] I am satisfied that the agreement reached between the Applicant and Respondent is a
complete answer to the claim of the Applicant for a remedy for unfair dismissal. In these
circumstances, and for the reasons given in Gorman, the Applicant’s application for unfair
dismissal has no reasonable prospects of success.
[59] The application for remedy for unfair dismissal is therefore dismissed pursuant to
s.587(1)(c) of the FW Act. An order12 to this effect will be issued with this decision.
COMMISSIONER
Appearances:
A. Smith for the Applicant.
M. Curran for the Respondent.
Hearing details:
2022.
Melbourne by telephone:
May 27.
Printed by authority of the Commonwealth Government Printer
PR742342
11 Australian Postal Corporation v Gorman [2011] FCA 975 at [31]
12 PR742343
M$ THE FAIR WORD COMMISSION SEAL THE
