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Deal or No Deal? – “Buyer’s Remorse” Cannot Undo the Settlement.

Deal-or-No Deal?–“Buyer’s-Remorse”- Cannot-Undo-the-Settlement.
Deal or No Deal? is important reading. Verbal agreements in the workplace binding

Deal or No Deal? – “Buyer’s Remorse” Cannot Undo the Settlement.

Deal or No Deal? – “Buyer’s Remorse” Cannot Undo the Settlement. Has in recent cases (unfair dismissal and general protections) before the Fair Work Commission have explored the notion of “buyer’s remorse”, in regards to undoing settlement agreements reached during conciliation. People settling stressed, not thinking normally, or assume the Fair work Commission is simply there for them.

Unfair dismissal or general protections claim lodged

Once a claim is lodged with the Fair work Commission – e.g. an unfair dismissal claim (F2 Application). Or a general protections claim (F8 or F8C Application). The FWC will hold a conciliation conference, if the parties agree. During this conciliation conference. Each party can negotiate in an informal but in a rigorous manner and explore the possibility of reaching an agreed settlement. Now the question stands. If a settlement agreement is reached at conciliation, does either party have the right to challenge and undo the settlement agreed upon?

Many employees get advice from co workers, wanting to know what they think. (then confidentality issues may come into it weaking your negotating position). Really what would they know. Get external advice, do your homework. You only usually “get one bite at it”

Challenging the settlement

There have been three recent cases in the Fair work Commission. Where the employee has challenged the settlement reached at conciliation. In one, the deal was undone and in the other two, the employee was held to the terms of the settlement that he had signed.

In the unfair dismissal case of Tao (Tara) Zhang v Spring FG Accounting Pty Limited  the employee and employer reached an “in principle” settlement on the day of the conciliation conference. The conciliator sent both parties an email confirming settlement had been reached. Further reminded the parties to finalize, sign and exchange a settlement agreement.

The employee’s solicitor then sent a proposed “Deed of Release” (the document recording the terms of the deal) to the employer’s solicitor. This version for the deed contained a broad “mutual release” clause. Which would have operated so that both parties released the other from all claims relating to the employment and the termination (i.e. a full release).

The employer sent back some amendments to the deed including one limiting the release only to claims relating to the unfair dismissal allegations. The employer did not want to release the employee from her post-employment contractual obligations. The employee argued that the employer’s one-sided release had not been discussed. Or agreed upon during the conciliation and the employee insisted on a “customary full release”. It is importantly noted that standard Fair work Commission Deeds of Release (i.e. Terms of Settlement) contain standard mutual terms such as mutual confidentiality, mutual non-disparagement and a mutual non-release.

deal-or-no-deal-Employee-under- pressure-to-settle
Employee under pressure to settle

The matter erupted into a dispute

The matter erupted into a dispute about what was said by whom at the conciliation conference. The employee’s lawyer asked the FWC to set the matter down for arbitration on the basis no agreement had been reached. Commissioner Bissett then had to decide whether the settlement stood or the matter should be referred for arbitration.

The decision Commissioner Bissett looked at the notes made by the lawyers during the conciliation conference. She found that there was no evidence that the scope of the mutual release (one way or the other) had been discussed or agreed. The Commissioner held that there had not been a “meeting of the minds”, so there could not be a binding agreement. This meant the unfair dismissal application remained unsettled and so it was referred to arbitration.

Deal or No Deal? – “Buyer’s Remorse” Cannot Undo the Settlement.

In the unfair dismissal claim of Michael Souter-Robertson v Achieve Corporate Services Pty Ltd. The parties had not reached an agreement in the initial conciliation conference. In turn the parties were directed to file materials for a listed arbitration. The matter was listed for arbitration by Deputy President Asbury. Additionally it was listed the matter for a secondary conference on 14 June 2016, prior to proceeding with arbitration. This was done in hopes of allowing the parties another opportunity to explore options for resolution to resolve the matter. The parties reached an in-principle agreement at this secondary conference and Deputy President Asbury sent out the terms of settlement to both parties.

On 1 July 2021, the Applicant’s representative wrote to Deputy President Asbury indicating,

Upon careful consideration of his position, the Terms and the evidence, the Applicant has decided that he is unwilling to accept the Respondent’s offer of settlement and would like the matter set down for hearing. While we have not previously encountered a similar situation and are therefore uncertain of procedure, in the circumstances of Deputy President Asbury presiding over the Conciliation Conference, the Applicant has instructed that we make application to the Registrar for the hearing to be conducted by a different Commissioner.”

You should be respected in your unfair dismissal conciliation. In reality its everybody for themselves

The Applicant’s representative did not inform the Respondent’s representative of their position.

Given the dispute between the parties, the matter was referred to Deputy President Gooley to determine whether there was a binding agreement to settle the unfair dismissal claim Thus, the Commission has the power to dismiss the application as it has no reasonable prospects of success.

Deputy President Gooley found that there was in fact a binding agreement to settle the unfair dismissal claim and upheld that the Applicant should not be permitted to resile from the agreement made because he had “buyer’s remorse.”. Deputy President Gooley also highlighted that both parties were represented at all times. Indicating the importance of legal representatives advising their clients regarding the binding nature of settlement agreements.

In general protections claim of Chris AKA Christopher Lawless v Australasian Association of Philosophy. The employee had signed the settlement document and applied to the Fair work Commission to undo his settlement and for a certificate to be issued in order to pursue his general protections claim.

Mental illness cannot always be used as a excuse

The reasons the employee gave as to why the settlement should be undone included that he was suffering from post-traumatic stress disorder. The employer was represented while he was not, he was not properly prepared for the conciliation conference. The Commissioner overseeing the matter had provided misleading information about the cost of taking his matter to the Federal Court and there was insufficient time for him to consider his position.

The employee had lodged his general protections claim with the FWC and then the employer raised jurisdictional objections which were heard by Commissioner Platt. After the jurisdictional hearing on 4 March 2021 and before the Commissioner decided those issued, he invited the parties to participate in an “off the record” conciliation conference with him.

Employee screaming on the phone this is not negotation. You have to seize the legal and the moral “high ground”. The big picture is to get what you want out of the situation. Have a plan and outcome in mind to work towards. Many employees just “see how it goes”. You have to do better than that if you want the best outcome.

In principal agreement was reached

An “in principal” agreement was reached on 4 March 2021 and the matter adjourned until the next day. On 5 March 2021, the employee confirmed to Commissioner Platt that he had received a copy of the deed that the employer’s lawyer had prepared overnight. He summarized it and advised that he was of sound mind and agreed to settle his claim on the terms in the deed. He provided his ex-employer with a signed copy on 8 March 2021. However, the employee failed to lodge the paperwork to discontinue his claim. When the Commissioner’s associate prompted him to do so on 21 April 2021. He argued the settlement was not binding and he wanted to proceed with his claim.

Commissioner Platt made a decision responding to the employee’s arguments and concluded that the employee had not been pressured or rushed during the Commission proceedings. He was of sound mind. He had indicated that he correctly understood the terms of the settlement he was entering into. Commissioner Platt said that “buyer’s remorse” was not an appropriate basis to undo a properly founded settlement. Commissioner Platt refused to issue a certificate for the Federal Court and closed the Commission’s file.

Some conciliation conferences feel like this. You’ve been unfairly dismissed now this

Agreements in conciliation are binding

These cases serve as a caution to parties that any in-principle agreement reached during conciliation conferences at the Fair work Commission (and in other tribunals, commissions or courts), may be held to be binding and they cannot be undone.

Nevertheless, it is important to utilize the conciliation conference and address all necessary issues. Such as specific terms of settlement which pertain to the agreement. Aforementioned, the parties should discuss the Deed of Release in the conciliation conference. Ensure there is an agreement in regards to any non-standard terms. That either party may wish to incorporate (i.e. one-sided release, any post-employment obligations or restraints of trade).

If you are participating in a conciliation conference at the Fair work Commission, make sure that you are prepared. That you understand the terms that you will accept and can communicate these clearly. These cases demonstrate the importance of obtaining proper legal advice. Review potential representation through the aid of lawyers/paid agents/representatives before making a decision and accepting a deal. You may ask permission from the Fair work Commission (and in other tribunals, commissions or courts) to hold the file open for a few days. While you obtain the necessary legal advice regarding the offer put forward. Taking these steps will ensure that parties are making the most informed decision as undoing settlement agreements is evidently challenging.

If your trying to get a good settlement from your employer don’t let them think your stupid. Tell them you have done your homework, you have got advice. Don’t agree to a deal then think “i’ll just check to see if this is ok. Then there are issues about the amount. Or the tax treatment of the settlement or some of the terms and conditions are one sided or unfair. It can be too late. You don’t expect the employer to change their mind, this apply’s both ways. Sometimes in negotation slow the process down, particulary at the end.

Deal or No Deal? – “Buyer’s Remorse” Cannot Undo the Settlement.

I hope the article was helpful to you. Negotiation is not a game, particularly when it involves your future. Employees say “oh I can do that myself”. I think to myself, its not working out to well for you so far. Your dismissed, the employer is lying to you, well good luck. We are A Whole New Approach P/L, we are not lawyers, we are based in Victoria. However we work on a national basis. We are considered the nations leading workplace advisors. You should get advice, Be professionally represented, be smart about what your options are.

Your welcome to get free advice from us call 1800 333 666 . All unfair dismissals, general protections issues. Anything to do with the workplace we are happy to give you advice or suggestions on what to do next. Workers rights, employment rights. Looking for a lawyer, call us first. You can see from reading the article we know what we are talking about. We work in all states, Victoria, NSW, QLD, SA, WA, Tas, NT

Get help, get advice.

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