A recent decision of the Fair Work Commission in Indu Sareen v University of Southern Queensland  FWCFB 6798, should provide comfort to employers. A Full Bench of the Commission determined that a settlement agreement reached during a conciliation conference for an unfair dismissal application was binding on the parties.
Ms Sareen was a senior internal auditor at the University of Southern Queensland. At the time of her dismissal, she had been employed by USQ for approximately 3 years.
USQ formed the view that Ms Sareen had behaved inappropriately towards another staff member and dismissed her for serious misconduct.
Ms Sareen’s unfair dismissal application to the Fair Work Commission was conciliated on 24 April 2018. Both parties were legally represented at the conciliation conference. Following the conciliation conference, USQ provided Ms Sareen with a deed of release.
She disputed some of the terms of her deed through her lawyer. Despite reaching a settlement agreement in principle with USQ at the conciliation conference, Ms Sareen subsequently sought to have her unfair dismissal application proceed to hearing.
Decision in the first instance
The Commission considered that ‘it is well established that an agreement that is not signed can nevertheless be binding on the parties to it’.
The Commissioner determined that the evidence supported a finding that there was an agreement to settle Ms Sareen’s unfair dismissal application in return for:
- payment of 12 weeks’ salary
- substitution of her dismissal with a resignation
- a statement of service
- a nominated point of contact for any queries from potential future employers.
The settlement agreement was to be formalised in a deed of release to be prepared by USQ’s lawyers.
USQ also presented evidence to the Commission that, at the conclusion of the conciliation conference, there were discussions between the parties’ legal representatives about ‘standard terms’ in the deed of release dealing with confidentiality and non-disparagement. Ms Sareen was adamant that there was no discussion about confidentiality, non-disparagement or mutual release.
The Commission determined the issues with the proposed deed alleged by Ms Sareen could be overcome by USQ revising its proposed deed to reflect simply what was agreed at the conciliation conference. This meant that the Commission could be satisfied that the parties had still reached an agreement and, as such, the agreement reached was a complete answer to the Ms Sareen’s unfair dismissal application.
Ms Sareen sought to appeal the Commission’s decision to dismiss her unfair dismissal application to the Full Bench. She claimed that:
- The Commissioner made a significant error of fact in finding that there was an agreement between the parties, as there remained a dispute.
- The decision was inconsistent with a previous decision of the Commission where, faced with closely similar facts, a different finding was made and was attended with sufficient doubt to warrant reconsideration.
The Full Bench rejected Ms Sareen’s application, determining that:
- Ms Sareen’s contention that the parties did not discuss the specific terms of the deed did not render the agreement reached during the conciliation conference invalid or unenforceable. An agreement between the parties could exist even though the terms of a deed of release remained in dispute.
- The Full Bench also considered that Ms Sareen had not been able to establish any arguable case that there had been an error of fact that would lead to a conclusion that the circumstances in which the agreement that was made was not binding in accordance with previous case law.
Annie Smeaton and Samantha Ramsay