Worker disputes agreement, says it had terms that he didn't approve
The Fair Work Commission (FWC) recently dealt with a worker’s claim that his unfair dismissal application should be accepted, alleging that his prior settlement agreement with his employer was ineffective.
The worker filed an unfair dismissal application, claiming he was unjustly terminated from his position with Pilbara Iron Company (Services) Pty Ltd.
A conciliation conference was then conducted with the parties before a Commission staff conciliator on 8 June 2023, during which the matter was seemingly resolved. However, the worker changed his mind and pursued the unfair dismissal remedy.
The employer rejected the worker's application, arguing that a binding settlement agreement was reached between the parties during the conciliation process.
The worker acknowledged that he and his representative participated in a conciliation conference. However, he said that he did not sign the settlement terms as he believed they were “inaccurate.”
According to the worker, at the end of the conciliation process, there was an understanding that his termination would be changed to a resignation, he would receive six weeks' pay, and be provided with a statement of service.
‘Inaccurate’ settlement agreement
According to records, when the worker reviewed the written terms of the agreement, he noticed that there was no mention of any restriction on his future employment. Due to this development, he contacted his representative from the Australian Workers’ Union (AWU).
In an email sent on 20 June, the worker informed his AWU representative that the agreement did not include any mention of a restriction on his ability to work, nor did it specify the duration of such a restriction, if any existed. He also requested references from his area supervisor and manager to support his efforts to secure a future job.
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On 10 July, the worker's AWU representative sent the request to the employer, but the latter didn't agree to change the terms as requested by the worker.
Despite making further efforts to address his concerns with the employer, the worker, on 6 August, requested the Commission to reopen his case and consider his claim for unfair dismissal.
In his request to the Commission, the worker said that the employer's representative had made a request during the mediation that he should have a work restriction under the pretence of changing the termination to a resignation.
He claimed that this condition was absent in the agreement provided to him for signing after the conciliation.
Furthermore, he said that despite the presence of a non-disparagement clause in the agreement, he had been subjected to disparagement, and former co-workers were instructed not to communicate with him.
Essentially, the worker argued that the draft agreement “did not accurately reflect” what transpired during the conciliation.
He also said that there were matters not discussed during the conciliation, which were also removed from the agreement. These omissions were currently affecting his ability to secure future employment, he said.
He believed that any restrictions the employer intended to place on his future employment should have been communicated to him, and he should have been given an opportunity to review the agreement before signing it.
Should the agreement bind the parties?
The FWC found that, during the conciliation process, the worker “made an initial offer which was rejected by the employer. The employer invited a further offer, which was made by the worker and accepted without equivocation, by the employer.”
“The offer and acceptance are precisely aligned. It must be concluded that an agreement was reached between the parties,” it added.
After investigating the claims, the Commission said the parties were able to reach an agreement.
“The parties reached finality as to the terms of an agreement, intend to be immediately bound, and proposed restatement of the terms of settlement in a fuller or more precise form but not different in effect,” it said.
However, it also said it “acknowledged the grievance the [worker] has with the employer, but this does not go to the issue of whether an agreement was reached at conciliation.”
“In any event, and as the [worker] insisted, he was aware of the policy of the [employer] at the time of conciliation but did not suggest this should either be stated in the agreement or that it meant no agreement was made,” the Commission said.
Thus, the FWC rejected the worker’s application for unfair dismissal.