1
Fair Work Act 2009
s.365—General protections
Bradley William Lewer
v
Australian Postal Corporation
(C2022/2468)
DEPUTY PRESIDENT ANDERSON ADELAIDE, 24 OCTOBER 2022
General protections (dismissal) – jurisdictional objection by respondent – whether binding
settlement agreement – whether reasonable prospects of success – application dismissed
[1] On 19 April 2022 Bradley Lewer (Mr Lewer or the applicant) applied to the Commission
under s 365 of the Fair Work Act 2009 (Cth) (the FW Act) to deal with a dismissal dispute in
relation to an alleged dismissal on 25 March 2022 by Australian Postal Corporation (Australia
Post or the respondent).
[2] Australia Post, by response dated 27 July 2022, opposed the application and raised a
jurisdictional issue. It claimed that Mr Lewer was not dismissed.
[3] A dispute has arisen as to whether a binding settlement agreement or Deed was reached
between the parties to this matter and whether the Commission has jurisdiction or power to
conduct further proceedings on the application (the binding settlement issue).
[4] This decision concerns the binding settlement issue.
[5] I issued directions for the determination of the binding settlement issue on 5 October
2022.
[6] Both parties agreed that the binding settlement issue be determined on the papers.1
[7] Materials were filed by both Mr Lewer2 and Australia Post3.
[8] I take all materials before me into consideration, including a witness statement filed by
Australia Post of Taylor Erin Burt (Ms Burt), Employee Relations Adviser, dated 12 October
2022.4
Facts
[2022] FWC 2822 [Note: An appeal pursuant to s.604 (2022/7087) was
lodged against this decision - refer to Full Bench decision dated 15 March
2023 [[2023] FWCFB 56] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2023fwcfb56.htm
[2022] FWC 2822
2
[9] The primary question for determination, in dispute between the parties, is whether a
binding settlement agreement exists. That is a factual matter determined by this decision.
[10] Facts subsidiary to this question are not in dispute. They are as follows.
[11] On 14 April 2022 Mr Lewer filed a general protections application (not involving
dismissal) with the Commission (C2022/2414).
[12] On 15 April 2022 Mr Lewer attempted to separately file a general protections
application involving dismissal (C2022/2468) with the Commission. He originally sent this
application to an incorrect email address, “postmaster@fwc.gov.au”.
[13] Mr Lewer’s application was accepted for filing on 19 April 2022 after he forwarded this
application to a correct Commission email address, “melbourne@fwc.gov.au”.5
[14] On 27 July 2022 Australia Post filed a response opposing the application and raising a
jurisdictional issue claiming that Mr Lewer was not dismissed.
[15] On 27 July 2022 Mr Lewer and Australia Post (represented by then Senior Employee
Relations Partner Mr Crook) attended a conciliation conference before a staff conciliator on the
application. The issues in dispute were not resolved at that time. However, during the
conciliation, a without prejudice offer of settlement was made by Australia Post.
[16] On 29 July 2022, following further correspondence between Mr Lewer and Australia
Post, Mr Crook emailed Mr Lewer and, amongst other things, confirmed that Australia Post’s
without prejudice offer of settlement remained open for acceptance by Mr Lewer until 5 August
2022.6
[17] On 29 July 2022 Mr Lewer wrote to Mr Crook rejecting the offer, stating: “The amount
is too low to accept and will wait and see what happens in this complaint and future complaints
unless you offer more money”.7
[18] On 9 August 2022, following a directions hearing, the Commission issued directions
listing the respondent’s jurisdictional objection for hearing on 21 September 2022, with the
parties directed to file materials by 30 August 2022 and (in reply) by 13 September 2022.
[19] On 12 August 2022, Mr Crook ceased employment with Australia Post. Ms Burt took
carriage of the matter on behalf of Australia Post.
[20] On 30 August 2022 Australia Post and Mr Lewer filed materials in relation to the
jurisdictional objection.
[21] On 30 August 2022 Mr Lewer wrote to Ms Burt making an offer of settlement, stating:
“I wish to confirm my intention to settle this matter as I was originally asking for $8,000 and
Josh Crook did not accept this. Please confirm whether you wish to accept this”.8
[22] On 31 August 2022 Ms Burt wrote to Mr Lewer rejecting this offer.9
[23] On 4 September 2022 Mr Lewer wrote to Ms Burt stating his intention to withdraw the
application and indicating that he would, “accept Josh Crooks offer before you took over this
[2022] FWC 2822
3
matter. If you can please finalise this matter I will accept his offer of $2,000 and withdraw the
complaint”.10
[24] On 4 September 2022 Mr Lewer wrote to the Commission in the following terms:11
“4 sep 2022
As this process has now dragged on for many months and the amount of time required
is so substantial with such little money and the difficulty of accessing remedies available
I have decided to accept Josh Crooks prior offer.
I also do not have the health condition required to continue to submit documents and
attend hearings.
Therefore I have decided to accept Josh Crooks prior offer of $2000 and withdraw if
that can be reinstated.
If this cannot be paid I am going to withdraw my complaint and start a new one with a
different jurisdiction
Regards
Bradley”
[25] On 6 September 2022 Ms Burt responded to Mr Lewer advising that the time for
acceptance of Australia Post’s earlier offer (made by Mr Crook) had closed; that Australia Post
was agreeable to resolving the matter with Mr Lewer on terms which included that “Australia
Post will agree to pay to you the sum of $2,000 (subject to applicable taxation)”; and invited
Mr Lewer to seek legal advice before accepting this offer.12
[26] On 6 September 2022 Mr Lewer accepted Australia Post’s offer by email, stating: “I
confirm I accept this offer and agree to your terms and conditions in relation to a $2,000
payment”.13
[27] On 8 September 2022 Ms Burt emailed Mr Lewer a Deed of Release reflecting the
agreement reached between the parties. Ms Burt requested that Mr Lewer review the terms of
the Deed of Release carefully and repeated that he may wish to seek independent legal advice
regarding the nature, effect and extent of the document.14
[28] On 15 September 2022 Mr Lewer returned an executed copy of the Deed to Ms Burt by
email.15
[29] On 16 September 2022, in response to a request by my chambers for an update on the
matter in light of the looming hearing date, Australia Post advised:16
“By way of update, the parties have reached an agreement in relation to the above matter.
The Applicant is copied to this correspondence and will file a notice of discontinuance
in due course.
[2022] FWC 2822
4
We respectfully request that the jurisdictional objection hearing listed for 21 September
2022 before Deputy President Anderson be vacated.”
[30] On 16 September 2022, in response to a request by my chambers for a response by Mr
Lewer, the applicant advised:17
“I can confirm an agreement has been reached and when I receive the total payment(s) by
electronic transfer I can file the notice of discontinuance.”
[31] On 23 September 2022 the Deed was countersigned by an authorised representative of
Australia Post.18
[32] The Deed provides (amongst other terms):19
at clause 2.3(a):
“(a) Australia Post agrees to pay the Employee:
(i) $2,000 (Additional Payment);
(ii) …
(iii) …
less applicable taxation (Total Settlement Payment).”
at clause 2.3(c):
“The Employee will be responsible for any further taxation on the Total Settlement
Payment.”
at clause 8:
“The Employee warrants that:
(a) the Employee has voluntarily entered into this document;
(b) the Employee has had the opportunity to take independent advice about the nature,
effect and extent of this document other than as set out in this document;
(c) Australia Post has not made any promise, representation or inducement to the
Employee to enter into this document; and
(d) the Employee is aware that the Group, its officers, employees and agents, are relying
on these warranties in executing this document.”
at clause 9.7:
“(a) This document contains the entire understanding between the Parties as to the
subject matter of this document.
[2022] FWC 2822
5
(b) All previous negotiations, understandings, representations, warranties, memoranda
or commitments concerning the subject matter of this document are merged in, and
superseded by, this document and are of no effect. No Party is liable to any other Party
in respect of those matters.
(c) No oral explanation or information provided by any Party to another:
(i) affects the meaning or interpretation of this document; or
(ii) constitutes any collateral agreement, warranty or understanding between the
Parties.”
[33] On 26 September 2022 Ms Burt contacted Australia Post’s payroll team by email to
arrange for payment to be made to Mr Lewer in accordance with the terms of the Deed of
Release.
[34] On 26 September 2022 Mr Lewer advised the Commission:20
“I wish to confirm that my earlier email stating an agreement had been reached and that
I agreed was sent in error.
To date, Taylor Burt has not sent her signed copy of the deed of agreement.
Until I receive payment no agreement has been finalized as the deed requires both parties
to sign it.”
[35] In a separate email that day, Mr Lewer advised:
“Further to my email advising an agreement has been reached that I agreed was sent in
error, I note that the deed of release requires someone to sign and payment to be made
before a discontinuation is lodged and in 21 days Australia Post needed to pay me to
finalize the deed of release.”
[36] On 27 September 2022 Australia Post made payment of $2,000 to Mr Lewer less the
applicable taxation amount.21
[37] On 28 September 2022 my chambers informed the parties as follows:22
“I refer to the above matter and the correspondence received from the parties yesterday
evening.
Any dispute between the parties over the terms of a private settlement agreement are a
matter for the parties, not a matter within the Commission’s jurisdiction or in respect of
which the Commission can make a ruling.”
[38] On 28 September 2022 Mr Lewer advised the Commission:23
“This agreement did not occur privately. It was done under mediation as an inherent
process of the Fair Work Commission with the mediator able to offer $2,000 as Josh
Crook, the former respondent discussed.
[2022] FWC 2822
6
As a man with a disability, The Imperial Acts Application Act 1969 (NSW) schedule 3
included in the submission to this complaint includes “To no one will we sell, to no one
will we deny, or delay right or justice”
I therefore wish to access my right to procedural fairness and have the mediators offer
negotiated between the parties reflected as a payment in the deed of release or I reserve
the right to continue my complaint with the Fair Work Commission as the deed of
release is invalid until full payment is received.”
[39] On 29 September 2022 my chambers advised the parties of a provisional view I had
formed on the dispute over settlement and issued directions regarding the hearing of that
dispute:24
“Dear Parties
The Deputy President informs and directs the parties as follows.
The Deputy President’s provisional view, based on the authorities listed below, is that
if a binding settlement agreement exists, the Commission has no jurisdiction or authority
to proceed further with the applicant’s claim and any dispute over the terms or
implementation of a binding settlement agreement would then be matters between the
parties, not the Commission.
The applicant and the respondent are each directed by the Deputy President to advise
the Commission, copied to the other party, by no later than close of business on 4
October 2022 whether they believe a binding settlement agreement exists in this matter.
The applicant and the respondent are each directed by the Deputy President to attempt
to resolve the dispute by further communication between each other by no later than
close of business on 4 October 2022.
If there is a dispute as to whether a binding settlement agreement exists, and if Mr Lewer
intends to proceed with his application, the Deputy President will then issue directions
for that question (whether a binding settlement agreement exists) to be heard and
determined.
Both parties are encouraged to take advice on what constitutes a binding settlement
agreement and the effect of such a circumstance on the Commission’s jurisdiction. To
assist, the Deputy President draws attention to the following decisions:
Masters v Cameron (1954) 91 CLR 353
Baulkham Hills Private Hospital v C R Securities (1986) 40 NSWR 622
Singh v Sydney Trains [2017] FWCFB 4562
Dokic v Multicultural Council of Gold Coast [2022] FWC 1417”
(emphasis in original)
Submissions
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4562.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc1417.htm
[2022] FWC 2822
7
Mr Lewer
[40] I distil the following from Mr Lewer’s materials.
[41] Mr Lewer submits that no binding settlement agreement was reached because at the time
he signed the Deed it had not been signed by Australia Post and was in fact not signed by
Australia Post until five days after he had done so.25
[42] Mr Lewer submits that it is wrong to characterise the Deed as a private agreement
because it was made “under mediation” conducted by a Commission staff conciliator.26
[43] In the alternative, Mr Lewer submits that no binding settlement agreement was reached
because he is a person with a disability and the Deed was signed by mistake.27
[44] In the further alternative, Mr Lewer submits that no binding settlement agreement was
reached because the Deed did not reflect the terms of his agreement. He says he agreed to
receive a payment of $2,000 and did not agree to a deduction for taxation.28 He asserts that ex
gratia payments for casual employees following a termination are generally tax free.29
[45] In the further alternative, Mr Lewer submits that no binding settlement agreement was
reached because such agreement does not exist until he receives the total settlement payment
of $2,000 (“I have not received my lawful entitlements therefore this deed of release is not
binding”).30
Australia Post
[46] Australia Post submit that the Deed of Release records a binding settlement agreement.
[47] Australia Post submit that according to the express terms of the Deed, as well as the
operation of law, the binding settlement agreement is a bar to any further proceedings on Mr
Lewer’s application.
[48] Mr Lewer did not execute the Deed under duress or mistake. He was invited by Australia
post to seek independent legal advice before signing the Deed.
[49] In making its payment to Mr Lewer, Australia Post gave effect to the terms of the Deed.
[50] Any order concerning the validity or enforceability of the Deed can only be made by a
court.
[51] Any dispute over the implementation or terms of a legally enforceable Deed can only
be determined by a court.
[52] Based on established Commission authority, the existence of a binding settlement
agreement acts as a bar to further proceedings including proceedings giving rise to issuing a
certificate under s 368(3)(a) of the FW Act.
[53] In these circumstances, the existence of a binding settlement agreement is a ground for
the Commission to dismiss the application under s 587 of the FW Act.
[2022] FWC 2822
8
Consideration
[54] The principles governing the Commission’s consideration of the effect of binding
settlement agreements are well established.
[55] The existence of a binding settlement agreement needs to be established as a matter of
fact. Whether a binding settlement agreement exists is commonly determined by reference to
the categories of agreement outlined in Masters v Cameron31 and Baulkham Hills Private
Hospital v C R Securities.32
[56] If a binding settlement agreement exists and its terms deal with current proceedings
before the Commission, the existence of the agreement is a complete answer to those
proceedings such that the Commission can recognise a binding settlement and dismiss an
application that has no reasonable prospects of success under s 587 of the FW Act.33
[57] Does a binding settlement agreement exist between Mr Lewer and Australia Post with
respect to Commission matter C2022/2468?
[58] The answer to this question is yes.
[59] Terms of settlement were agreed by Mr Lewer in writing on 15 September 2022 and by
Australia Post on 23 September 2022.
[60] The agreement is in evidence.34 Its terms specifically provide for the discontinuance of
and release from the current proceedings C2022/2468.
[61] Mr Lewer’s submission that the Deed is not binding because it was not signed by
Australia Post until five days after he had done so has no force. Irrespective of whether an
agreement creating binding contractual obligations of the first or second category in Masters v
Cameron or of the fourth category in Baulkham Hills Private Hospital v C R Securities existed
prior to both parties signing the Deed on 15 and 23 September 2022 respectively, it is clear that
at least from 23 September 2022 when Australia Post countersigned the Deed that a formal
agreement of that character existed on and from that date.
[62] Were it necessary to determine whether a binding settlement agreement existed prior to
that date, I would so find. An agreement of the first category in Masters v Cameron did in fact
exist. Such an agreement was made on 6 September 2022 when Mr Lewer accepted Australia
Post’s offer of that same date.
[63] Mr Lewer’s contention that the Deed is not a private agreement because it was made
“under mediation” conducted by a Commission staff conciliator has no force. The submission
is wrong as a matter of fact. The agreement is not the product of a Commission determination.
It is an agreement made between parties. Thus, it is a private agreement. In this matter, it is
clear from the evidence that the offer made by Australia Post during conciliation had expired
and that the settlement agreement arose from Australia Post renewing that offer in private
correspondence with Mr Lewer on 6 September 2022. In any event, that an agreement between
parties may be facilitated by a Commission process does not alter its character as a private
agreement.
[2022] FWC 2822
9
[64] Mr Lewer’s submission that no binding settlement agreement was reached because it
was made by mistake, or as a consequence of disability or that the Deed did not reflect, in his
opinion, the terms of his agreement as to taxation of the settlement sum are matters that concern
a challenge to the legal validity of the Deed. There is no evidence before the Commission on
which such findings can be made. Only a court and not the Commission has power to order that
a Deed is invalid or unenforceable on the ground of mistake, unconscionability or on other such
basis.
[65] In any event, it is apparent at least from the terms of the signed Deed (cl 2.3 (a) and (c))
and the evidence before the Commission that express provision was made for the deduction of
taxation from the settlement sum and that Mr Lewer was given the opportunity to consider its
terms and take legal advice before signing the Deed.
[66] Mr Lewer’s further submission that no binding settlement agreement is reached until he
receives a settlement payment of $2,000 takes the matter no further. This submission is in effect
a reformulation of the submission that the Deed provided an entitlement to a sum of $2,000
without deduction for taxation. I have not found that to be so. In any event, given that I have
found a binding settlement agreement existed in the terms of the written Deed, any dispute over
the implementation of the terms of the Deed can only be determined by a court.
[67] Does the binding settlement agreement act as a barrier to further Commission
proceedings on Mr Lewer’s application?
[68] Both on its terms, as well as a matter of law, the answer to this question is yes.
[69] Clauses 4 and 5 of the Deed provide:
“4. Discontinuance of Proceedings
The Employee will, within seven days of being paid the Total Settlement Payment,
withdraw and discontinue the Proceedings in their entirety by filing a notice of
discontinuance and serving a copy on Australia Post.
5. Bar to proceedings
The Parties agree that any member of the Group, or any director, officer, employee or
agent of any member of the Group, may plead this document as an absolute bar in any
court of law, arbitral tribunal or otherwise in response to any proceedings or Claims
whatsoever brought by the Employee in respect of or arising out of the matters referred
to or contained in this document.” (emphasis in original)
[70] These clauses evince an express intention that these proceedings be brought to a close
upon the settlement sum (‘Total Settlement Payment’) being paid.
[71] In any event, the accord and satisfaction evidenced by the Deed binds the parties to give
effect to their agreement on its terms. It extinguishes Mr Lewer’s existing cause of action and
replaces it with a new contractual cause of action based on the agreement.
[2022] FWC 2822
10
[72] This being so, the settlement agreement is a complete answer to Mr Lewer’s general
protections application. It means that his application no longer has reasonable prospects of
success.35
Disposition
[73] As Mr Lewer’s application has no reasonable prospects of success, the Commission’s
power to dismiss the application under s 587 of the FW Act is enlivened.
[74] There are no discretionary reasons not to exercise that power. There are compelling
reasons to do so. It is not in the interests of the efficient administration of justice and the
functioning of the Commission for applications that are subject to binding settlement
agreements to remain live where further proceedings on those applications are barred. This is
particularly so in circumstances where, as in the current matter, the Deed requires the
discontinuance of an application but where that discontinuance has not been filed.
[75] To the extent that Mr Lewer has not done so because he believes that he is entitled to a
tax free payment by Australia Post of $2,000 and not the payment of $2,000 less tax that he has
received, that is a matter that incapable of being resolved by order of the Commission.
[76] For these reasons, application C2022/2468 is dismissed.
[77] An order36 giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Hearing details:
Matter decided on the papers.
Printed by authority of the Commonwealth Government Printer
PR747038
1 Mr Lewer by email to ‘Chambers – Anderson DP’ 11 October 2022 8.48pm; Australia Post by email to ‘Chambers –
Anderson DP’ 12 October 2022 10.34am
2 Emails to ‘Chambers – Anderson DP’ 11 October 2022 8.48pm and 16 October 2022 2.38pm
3 Email to ‘Chambers – Anderson DP’ 12 October 2022 10.34am
4 Statement 12 October 2022 including TB1 to TB3
WORK COMMISSION HE THE SEA
[2022] FWC 2822
11
5 The s 365 application was filed within time due to the fall of Easter public holidays. The earlier non-dismissal dispute
application concerning the same or similar matters was filed by Mr Lewer on 14 April 2022 under s 372 of the FW Act. The
Commission conducted a conference on the s 372 application on 5 May 2022. It did not resolve. The file was then
administratively closed
6 TB1
7 TB1
8 TB2
9 TB2
10 TB2
11 Email to ‘Chambers – Anderson DP’ 4 September 2022 8.36pm
12 TB2
13 TB2
14 TB2
15 TB3
16 Email to ‘Chambers – Anderson DP’ 16 September 2022 10.28am
17 Email to ‘Chambers – Anderson DP’ 16 September 2022 2.38pm
18 TB3 page 7
19 TB3
20 Emails to ‘Chambers – Anderson DP’ 26 September 2022 5.11pm and 5.15pm
21 TB4
22 Email from ‘Chambers – Anderson DP’ 27 September 2022 5.16pm
23 Email to ‘Chambers – Anderson DP’ 27 September 2022 3.13pm
24 Email from ‘Chambers – Anderson DP’ 29 September 2022 10.01am
25 Emails to ‘Chambers – Anderson DP’ 26 September 2022 5.11pm and 5.15pm
26 Email to ‘Chambers – Anderson DP’ 28 September 2022 3.13pm
27 Emails to ‘Chambers – Anderson DP’ 26 September 2022 5.11pm and 5.15pm
28 Email to ‘Chambers – Anderson DP’ 27 September 2022 5.16pm
29 Email to ‘Chambers – Anderson DP’ 1 October 2022 11.35am
30 Submission by email 16 October 2022 2.38pm see also email 1 October 2022 11.35am
31 (1954) 91 CLR 353
32 (1986) 40 NSWR 622
33 Singh v Sydney Trains [2017] FWCFB 4562; Dokic v Multicultural Council of Gold Coast [2022] FWC 1417; Stenly v The
Hour Glass (Australia) Pty Ltd [2022] FWC 2674
34 TB3
35 Australian Postal Corporation v Gorman [2011] FCA 975 at [33] per Besanko J: “…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”. See
also Curtis v Darwin City Council [2012] FWAFB 8021
36 PR747039
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4562.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc1417.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc2674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2012fwafb8021.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr747039.htm
