1
Fair Work Act 2009
s.365—General protections
Samuel Howell
v
Elite Elevators Corporation Pty Ltd
(C2023/5486)
JUSTICE HATCHER, PRESIDENT SYDNEY, 24 JANUARY 2024
Application to deal with general protections contraventions involving dismissal – conciliation
conference conducted – settlement reached – notice of discontinuance filed by applicant’s
representative – dispute regarding whether applicant instructed or authorised filing of notice
of discontinuance – discontinuance held to be invalid – conference conducted.
Background
[1] Pursuant to the Full Bench decision issued in this matter on 22 December 2023,1 I
conducted a further conciliation conference at 9:30 am (AEDT) on 19 January 2024. In addition
to the applicant and respondent, the conference was attended by a representative of Employee
Claims Pty Ltd (Employee Dismissals), Ms Pareshni Pillay, pursuant to an order to attend which
I issued on 11 January 2024. I considered the attendance of Employee Dismissals, which
represented the applicant, Mr Howell, as a paid agent earlier in the proceedings, to be necessary
to assist in the resolution of the matter arising out of the circumstances described in detail in
the Full Bench decision.
[2] After conferring with the parties and Employee Dismissals both individually and
collectively during the conference, I made a verbal recommendation for the resolution of the
outstanding issue. The applicant and respondent were, in principle, prepared to accept this
recommendation. Ms Pillay for Employee Dismissals, who claimed to be located in Brisbane,
said that she could not respond without first obtaining instructions from her manager, Ms
Belinda Solomon, who was said to be located in Perth. I granted an adjournment of the
conference until 11:00 am (AEDT) in order to facilitate Ms Pillay obtaining such instructions.
When the conference resumed, Ms Pillay indicated that she had been unable to contact Ms
Solomon but that she would be able to respond to my chambers by the close of the day. In the
circumstances I directed that Employee Dismissals’ response was to be provided to my
chambers in writing by 9:00 am (AEDT) on 22 January 2024. I indicated that, in the absence
of a positive response, I would issue a written recommendation.
[3] No response was received by this date and time. At 9:52 am (AEDT) on 22 January
2024, my chambers sent the following email to Employee Dismissals (for the attention of Ms
Pillay):
[2024] FWC 206
RECOMMENDATION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc206.pdf
[2024] FWC 206
2
On Friday, 19 January 2024, during the conference before Justice Hatcher, President, you were
directed to respond to the President’s verbal recommendation by 9:00 am (AEDT) today,
Monday, 22 January 2024. We are yet to receive a response from Employee Dismissals.
Please urgently advise if you intend to respond to the President’s recommendation. If we do not
hear from you by 12:00 pm (AEDT) today, the President will proceed with the next steps
outlined at the conference.
[4] Employee Dismissals eventually responded by email at 8:00 pm (AEDT) on 22 January
2024. It declined to accept the recommendation made at the conference.
[5] In the circumstances described, I will now issue a formal written recommendation in
relation to the dispute as it now stands, involving expressions of opinion about certain relevant
matters, pursuant to ss 368(1) and 595(2) of the Fair Work Act 2009 (Cth) (FW Act). The factual
context in which I make this recommendation, derived from the documents provided by the
parties or produced by Employee Dismissals and other matters not in dispute, is set out below.
Factual context
[6] After his dismissal by the respondent on 31 August 2023, Mr Howell made contact with
Employee Dismissals to seek representation on or about 4 September 2023. At 11:11 am on 6
September 2023, Employee Dismissals sent the following email to Mr Howell:
Thank you for consulting Employee Dismissals about the recent termination of your
employment.
We are pleased to advise that we have completed our complimentary assessment of your case.
In the course of doing so, we have undertaken a detailed consideration of the documentation and
information provided to us.
We have an obligation to certify that every claim we lodge in an industrial tribunal on behalf of
a former employee is not frivolous or vexatious, and that it enjoys a reasonable prospect of
success. Such certification is intended to provide you with a degree of protection in the event of
an unsuccessful outcome.
We are pleased to advise that Employee Dismissals is prepared to provide the following to you
on the condition that you agree to our terms of service by returning a signed copy of our terms
of engagement to us on or before 5:00pm (AEST) on 7 September 2023:
• Certification that your claim is not frivolous or vexatious, and that it enjoys a
reasonable prospect of success; and
• Representation to you as your industrial agent in a claim against your former
employer in an industrial tribunal seeking the reversal of your dismissal and the
payment of compensation for economic loss sustained as a consequence of the
dismissal, on the terms outlined in our terms of engagement.
Should you wish to proceed, our professional fee will be fixed at $4490 plus GST subject to our
No Win No Fee Guarantee as outlined in our terms of engagement. This is competitive given
the benefits of having your claim certified and receiving competent representation, and the risk
[2024] FWC 206
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that our professional fee may not be payable if you are eligible to take advantage of our No Win
No Fee Guarantee.
Because the law imposes strict time limits on dismissal-related claims, it is necessary to reiterate
that our offer to certify your claim and provide representation is conditional upon us receiving
a signed copy of our terms of engagement on or before 5:00 pm (AEST) on 7 September 2023
after which time the offer will automatically lapse and it will not be possible for us to assist you.
The deadline is based on your instructions that the termination of your employment took effect
on 31 August 2023.
If you wish to instruct Employee Dismissals to lodge a claim against your former employer
challenging the termination of your employment, please let me know via reply email and I will
provide our terms of engagement for your review and approval.
The deadline for bringing claims is strictly applied, so please come back to me as soon as
possible in order that we will have adequate time to lodge an in-time application challenging
your dismissal.
[7] As to the above email, I note the following:
(1) The email contains no advice about or even a description of the contemplated legal
action which is the subject of ‘certification’. There is no document produced by
Employee Dismissals that evidences that the nature of the contemplated legal
action was ever explained in writing to Mr Howell.
(2) The reference to ‘a claim against your former employer in an industrial tribunal
seeking reversal of your dismissal and the payment of compensation for economic
loss’ is an inadequate and inaccurate description of the claim ultimately lodged by
Employee Dismissals pursuant to s 365 of the FW Act. It misleadingly implies
that an industrial tribunal (i.e. the Fair Work Commission) has the power to
‘reverse’ a dismissal alleged to have occurred in breach of Pt 3-1 of the FW Act
and award compensation. It does not explain that the Commission’s role is
confined to mediation/conciliation (unless the parties consent to arbitration) and
that such claims can only be determined by a relevant court. It may also be inferred
that Employee Dismissals had no intention of representing Mr Howell beyond the
mediation/conciliation process — a matter which was never explained to him in
writing.
(3) The fee of $4,490 plus GST is said to be subject to a ‘No Win No Fee Guarantee’,
the nature of which is not explained in the email.
(4) The requirement for Mr Howell to sign Employee Dismissals’ ‘terms of
engagement’ by 5:00 pm on 7 September 2023 likely imposed pressure on him to
respond quickly. The statement that ‘the law imposes strict time limits on
dismissal-related claims’, while correct in isolation, is misleading in context
because it suggests that such time limits justified the identified deadline. In fact,
under s 366(1)(a) of the FW Act, Mr Howell had until 21 September 2023 to file
an application under s 365 in respect of his dismissal by the respondent.
[2024] FWC 206
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[8] Mr Howell emailed an acceptance of the offer contained in the email from Employee
Dismissals at 11:13 am, two minutes after he received it. This should have caused Employee
Dismissals to query whether Mr Howell had properly read and understood the document and
prompted an inquiry in this respect. Instead, the same day (6 September 2023) at 11:43:14 am,
it sent him by ‘Dropbox Sign’ a letter entitled ‘Terms and Conditions and Instructions to Act’.
This letter, which was produced to the Commission by Employee Dismissals, is six pages long,
was plainly drafted by a lawyer, is in complex terms and is intended to constitute, upon
acceptance, a binding agreement. There are many aspects of it which are problematic. For
example:
• The letter opens with the claim that ‘Employee Dismissals has reversed more than
1,000 dismissals for employees around Australia’. If ‘reversed’ is given its
ordinary meaning within the context of dismissal — that is, to overrule or annul
the dismissal — then this claim is almost certainly untrue.
• The specified ‘scope of work’ in respect of which the ‘Professional Fee’ of $4,490
plus GST applies indicates that representation of Mr Howell would extend to
‘appearing on your behalf at a conference or mention on a date and time set by the
Tribunal … and engaging in any settlement negotiations…’. It might be inferred
from this that the representation in respect of Mr Howell’s claim would not go
beyond this point. However, other parts of the letter give the impression that the
representation would extend to the determination of the claim. In particular, in
respect of the ‘No Win No Fee Guarantee’, the letter states:
Dismissal claims are determined by reference to applicable legislation and established
case law, which can involve some complexity. Whilst many employers have access to
legal advisors and representatives who are familiar with the law and the process, the
same cannot always be said for the average dismissed employee. By engaging our
representation, we believe you increase the chance of obtaining a successful outcome
against your former employer.
(underlining added).
[9] By far the most problematic part of the letter is that setting out the terms of the ‘No Win
No Fee Guarantee’. Seven conditions are specified which must be satisfied in order for this
guarantee to apply. The third condition is that ‘The Employer does not at any time make a
monetary offer of settlement that is equal to or exceeds the amount of our Professional Fee.’
However, the fifth condition is:
Should the Employer, at any time after you have engaged Employee Dismissals, make any
monetary offer of settlement or otherwise make any payment to you, the No Win No Fee
Guarantee will only apply to the amount of our Professional Fee which exceeds the amount of
the monetary offer of settlement and/or the payment made to you by the Employer…
[10] The above condition must be read in conjunction with the following terms of the letter
under the heading ‘Payment of Settlement Proceeds’:
You unconditionally agree to execute, on request by Employee Dismissals, an irrevocable
authority to receive and direction that the Employer pay any settlement funds by electronic funds
transfer into a bank account held in the name of Employee Dismissals. By signing this
[2024] FWC 206
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document, you authorise the payment of any funds by the Employer into a bank account held in
the name of Employee Dismissals.
Employee Dismissals shall deduct its Professional Fee and shall then remit the balance by
electronic funds transfer to a bank account held in your name with an Australian financial
institution generally within 21 days starting from the latter of (i) the date on which funds are
received from the Employer; or (ii) the date Employee Dismissals receives written advice of
your bank details from you.
[11] The combined effect of the fifth condition and the above provision is that:
(1) any settlement offer by the employer that is less than the prescribed ‘Professional
Fee’ of $4,490 plus GST triggers an obligation to pay an equal amount to
Employee Dismissals (because the ‘No Win No Pay Guarantee’ does not apply to
this amount), even if Mr Howell were to not accept the offer; and
(2) if such an employer offer were accepted by Mr Howell, the settlement amount is
to be paid to a bank account held in the name of Employee Dismissals, and the
settlement amount paid will be equal to the fee payable by Mr Howell to Employee
Dismissals, resulting in no money being payable to Mr Howell.
[12] If, for the purpose of the ‘No Win No Pay Guarantee’, a ‘win’ could include an outcome
whereby Mr Howell received nothing, this should have been carefully explained to him. It is
unlikely that a layperson would understand this to be a possible outcome even if they
painstakingly read the letter.
[13] In fact, Mr Howell did not read the letter, and Employee Dismissals must have known
that he did not read the letter. Its own records show that Mr Howell had viewed the document
and electronically attached his signature by 11:44:18 am — 64 seconds after he had received it.
In these circumstances, it is unconscionable in my view for Employee Dismissals to rely on the
terms of the letter.
[14] Mr Howell signed the ‘irrevocable authority’ referred to in the terms of engagement
letter (see [10] above) on 10 October 2023. Employee Dismissals’ records show that it was sent
to him by ‘Dropbox Sign’ at 11:08:33 pm, he viewed it at 11:22:19 pm and he signed it
electronically some 21 seconds later at 11:22:40 pm. Again, he plainly did not read it, and this
must have been known by Employee Dismissals. The document purportedly authorised and
directed Employee Dismissals:
… to pay all or any monies which are or may become due to me as a result of any settlement or
determination of any claim before the Fair Work Commission… to a bank account held with an
Australian financial institution in the name of Employee Claims Pty Ltd… by way of electronic
funds transfer.
Again, the misleading reference to a ‘determination’ by the Commission may be noted.
[15] There is no evidence of any further written advice or communication prior to the
conference conducted by Commissioner Allison on 19 October 2023. As stated in the Full
Bench decision, the parties agreed at this conference to settle the matter on the basis of a
[2024] FWC 206
6
payment of a settlement sum by the respondent. The settlement sum was considerably less than
the ‘Professional Fee’ of $4,490 plus GST specified in Employee Dismissals’ terms of
engagement letter. It was accepted by Ms Pillay at the conference before me that at no stage
during the conference before the Commissioner on 19 October 2023 was Mr Howell advised
by Employee Dismissals that acceptance of the settlement sum would, under Employee
Dismissals’ terms of engagement, result in him receiving nothing.
[16] The terms of settlement which were agreed during the conference before the
Commissioner were placed on record by the Commissioner. The terms of settlement required
that respondent pay the settlement sum ‘into the Applicant’s nominated bank account within 7
days of execution of this Agreement by both parties’. The recording includes the following
exchange after the Commissioner finished reading out the terms of settlement:
Respondent’s legal representative: …I’d be grateful if Mr Howell’s representative or Mr Howell
can confirm that payment can be made to the account that was used to pay him during the course
of his employment for the purposes of the settlement sum.
Commissioner: No, I understand Mr Howell will provide you with account details.
(underlining added)
[17] Ms Pillay, who was the representative from Employee Dismissals at the conference
before the Commissioner, did not say anything to contradict what was said above or make any
reference to the purported effect of the ‘irrevocable authority’ which Mr Howell had signed.
Nor did Employee Dismissals subsequently provide any advice whatsoever to Mr Howell about
the arrangements for payment. Based on the above, Mr Howell was entitled to believe that,
once he had executed the written settlement terms, the settlement sum would be paid within
seven days into a bank account nominated by him.
[18] In fact, as recounted in the Full Bench decision, the respondent paid the settlement sum
to Employee Dismissals’ bank account the following day, 20 October 2023. This was more than
a week before Mr Howell executed the terms of settlement. At the conference before me, the
respondent provided an email which Employee Dismissals had sent to its legal representative
at 11:35 am on 19 October 2023, shortly after the end of the conference. This email was not
produced by Employee Dismissals pursuant to the order for production which I issued on 14
December 2023, which required production of ‘[a]ll documents concerning Employee
Dismissals’ representation of Mr Samuel Howell in matter number C2023/5486’. The email
stated:
We confirm that we appeared at a conciliation conference before the Fair Work Commission
and an in-principle agreement was reached between the parties on 19 October 2023
(Conference).
We confirm that the settlement proceeds are to be remitted in full to the following trust
account nominated by the Applicant per an Irrevocable Authority to Receive and Direction to
Pay signed by the Applicant, attached herewith:
[bank account details not reproduced].
[2024] FWC 206
7
[19] This email was not copied to Mr Howell, nor did Employee Dismissals at any time
inform Mr Howell that it was going to send or had sent this email. It appears to have been this
email which caused the respondent to send the settlement sum to Employee Dismissals.
[20] As recounted in the Full Bench decision, Employee Dismissals did not inform Mr
Howell that it had received the settlement sum on 20 October 2023. This only came to light
after Mr Howell complained to the Commission that he had not received the settlement sum on
13 November 2023. It was later on the same day that Employee Dismissals sent Mr Howell an
email informing him that it had received payment of the settlement sum, which had been applied
to the payment of its fees, and that he was indebted to them for the balance of the ‘professional
fee’ (contrary to the apparent purported effect of its terms of engagement). It also informed him
that it would shortly file a notice of discontinuance, and did so on 17 November 2023. That
notice was found in the Full Bench decision to be invalid and a nullity.
[21] Finally, I note that the conduct of Employee Dismissals in a number of other matters
has been problematic, as evidenced by the following decisions:
1. Khadka v Achieve In Parramatta Ltd [2023] FWC 3478 at [6]–[7];
2. Thurlow v Millennium Marine (Aust) Pty Ltd [2023] FWC 3423 at [6];
3. Diedrichs v Thacker Removals Pty Ltd [2023] FWC 2946 at [8]–[9];
4. Lobo v Trustee for ARS Unit Trust [2023] FWC 2739 at [6]–[7];
5. Tapner v R.P.M. Tyres (Hastings) Pty Ltd [2023] FWC 2070 at [12];
6. Destounis v Formplus Formwork Pty Ltd [2023] FWC 1989 at [5]–[7];
7. Nepal v Queensland Venue Co Pty Ltd [2023] FWC 1944 at [4]–[5];
8. Rockstroh v IFYS Ltd [2023] FWC 1798 at [4]–[6];
9. Wilton-Prince v APCO Engineering Pty Ltd [2023] FWC 1741 at [8]–[9];
10. Purcell v Trustee For The Korumburra Hotel Unit Trust [2023] FWC 1573 at [7];
11. Smith v Retail Staff Pty Ltd [2023] FWC 485 at [6]–[7];
12. Ibrahim v AMES Australia [2023] FWC 265 at [8]–[11];
13. McNicol v 4lifeskills Inc [2021] FWC 6709 at [51];
14. McNicol v 4lifeskills Inc [2021] FWC 6312 at [3];
15. Rawson v Randstad Pty Ltd [2021] FWC 604 at [5]–[7];
16. Martin v Ironmen Pty Ltd [2021] FWC 603 at [8]–[10];
17. Rose v Moorditch Gurlongga Association Inc [2021] FWC 908 at [7]–[10];
18. Plant v 360 Logistics Pty Ltd [2021] FWC 905 at [10]–[11];
19. Carstairs v Double View Developments Pty Ltd [2021] FWC 602 at [4]–[8];
20. Lalli v Duo Trading Pty Ltd [2021] FWC 659 at [26];
21. Dharanikota v AAA Filling and Food Pty Ltd [2021] FWC 134 at [7];
22. Mikulich v Multiquip Aggregates Pty Ltd [2021] FWC 3 at [14]–[19];
23. Bryce v Italia Stone Group Pty Ltd [2020] FWC 7074 at [1]–[12];
24. Beyene v Adhumic Nominees Pty Ltd (as trustee for the Milcon Properties Unit
Trust) [2020] FWC 6397 at [2]–[10].
25. Nasslander v Cairns & District Aboriginal & Torres Strait Islanders Corpo
[2020] FWC 6325 at [10];
26. Lakeman v Valley Industries Ltd [2020] FWC 6329 at [2]–[8];
27. Scott v DFP Recruitment Services Pty Ltd [2020] FWC 5682 at [13];
28. Panizza v Shinda International Pty Ltd [2020] FWC 5196 at [2];
29. Bell v MLH Property Solutions [2020] FWC 2798 at [5]; and
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc3478.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc3423.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2946.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2739.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2070.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1989.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1944.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1798.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1741.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1573.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc485.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc265.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc6709.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc6312.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc604.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc603.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc908.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc905.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc602.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc659.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc134.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc7074.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc6397.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc6325.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc6329.htm
[2024] FWC 206
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30. Aimsley v Barra Steel (Vic) Pty Ltd [2020] FWC 3726 at [4]–[8].
Expression of opinion
[22] On the basis of the above facts, my opinion is that:
(1) Employee Dismissals has engaged in misleading and unethical conduct in
connection with its representation of Mr Howell as paid agent in this matter, and
has not acted in his best interests.
(2) While it may be accepted that the respondent (and its legal representative) acted
in good faith in paying the settlement sum to Employee Dismissals, I do not accept
that this constituted compliance with the terms of settlement which Mr Howell
had entered into.
Recommendation
[23] On the basis of the above, I make the following recommendation:
(1) Employee Dismissals should repay the settlement sum to the respondent.
(2) The respondent should then pay the settlement sum into a bank account nominated
by Mr Howell.
(3) On receipt of the settlement sum, Mr Howell should file a notice of discontinuance
forthwith.
[24] I direct Mr Howell, the respondent and Employee Dismissals to provide written advice
to my chambers by 5:00 pm (AEDT) on 31 January 2024 as to their acceptance, or otherwise,
of the above recommendation. The recommendation may only be accepted in its entirety, and I
will treat any partial acceptance as a rejection.
[25] In the event that the recommendation is not accepted by the parties and Employee
Dismissals, the matter will be returned to the Full Bench for consideration as to whether a
certificate should be issued under s 368(3)(a) of the FW Act. Because of the opinions I have
expressed herein, I will not participate further in this Full Bench and the Full Bench will be
reconstituted accordingly.
PRESIDENT
THE FAIR WORK FAI COMMISSION THE
[2024] FWC 206
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Appearances:
S Thirukumar, solicitor, for Samuel Howell.
J Amin, solicitor, for Elite Elevators Corporation Pty Ltd.
P Pillay for Employee Claims Pty Ltd t/a Employee Dismissals.
Conference details:
2024.
Sydney by video using Microsoft Teams:
19 January.
Printed by authority of the Commonwealth Government Printer
PR770611
1 [2023] FWCFB 265 at [38].
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb265.pdf
