1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Mrs Sharon Williams v Abbot Point Bulkcoal Pty Ltd Trading AS Adani (U2025/15811) COMMISSIONER LIM PERTH, 11 JUNE 2026 Application for an unfair dismissal remedy 1. What this decision is about [1] Ms Sharon Williams has applied to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) alleging that Abbot Point Bulkcoal unfairly dismissed her. The parties participated in a staff conciliation on 24 November 2025. The parties disagree on whether a binding agreement was reached during the staff conciliation. [2] The parties agreed that the matter could be dealt with on the papers. Having considered the evidence and materials filed, I find that a binding agreement was reached; Ms Williams’ case must therefore be dismissed under s 587 of the Act. [3] My detailed reasons for my decision follow. 2. Background [4] Ms Williams’ witness statement in this matter does not go into much detail regarding what occurred during the staff conciliation. Her evidence is that she did not lack legal capacity at the staff conciliation, but that she was under significant psychological stress at the time, which affected her ability to assess complex legal consequences. Ms Williams provided a letter from her treating psychologist in support of this. [5] It is clear from Ms Williams’ statement that she did verbally agree to a set of terms during the staff conciliation – her witness statement provides that, “At most, I gave an in- principle verbal indication during the conciliation”. [6] Ms Williams provided a witness statement from Ms Jenni Watson, who was her support person during the staff conciliation. Ms Watson’s evidence is that Ms Williams was very distressed and overwhelmed throughout the staff conciliation. Ms Watson’s recollection is that the discussion regarding settlement was in general terms, where it involved a payment from Abbot Point, as well as a “form of confidentiality or non-disclosure arrangement”, along with [2026] FWC 2175 DECISION [2026] FWC 2175 2 non-disparagement. Ms Watson does not recall a detailed explanation of the deed, nor any mention of Ms Williams releasing future claims. Ms Watson’s statement goes on to say she did not understand that the matter was being finalised on the spot in the form that was later set out in a deed. [7] Abbot Point provided a witness statement from Mr Connor McManus, who is a solicitor employed by Ellem Warren Napa Lawyers. Mr McManus is currently on a secondment to the Bravus Group to provide legal services, which includes providing services to Abbot Point as in-house counsel. Mr McManus attended the staff conciliation with two other representatives for Abbot Point. [8] Mr McManus’ evidence is that the conciliation proceeded in a normal fashion, with an opening session with the Commission staff conciliator before the parties were split into private session. [9] At 11:49am, Abbott Point provided an offer to the staff conciliator to convey to Ms Williams. The offer was for $2,000 gross (less applicable taxes), on the basis of the Commission’s ‘standard’ terms, being an agreement where payment would be made after the execution of a written agreement with terms for mutual release; mutual confidentiality; and mutual non-disparagement obligations. [10] Mr McManus’ recollection is that he advised the staff conciliator that the offer deviated slightly from standard terms, as the non-disparagement terms would need to apply to the entire Bravus Group, rather than just Abbot Point. Mr McManus told the staff conciliator that he would draft the terms of the deed, rather than using the Commission’s template terms. The staff conciliator then went to speak to Ms Williams., [11] At approximately 11:59am, the staff conciliator brought the parties back together in joint session. The staff conciliator advised that Ms Williams had accepted Abbot Point’s offer. Mr McManus’ evidence is that the staff conciliator stated she would repeat the offer, so that the parties were clear on the terms and so the parties could confirm agreement of the offer in front of each other. [12] The staff conciliator went on to say that Ms Williams had waived any cooling off period and she had agreed that the agreement that had been reached was to be binding at the end of the conciliation. The staff conciliator then stated the offer was: (a) a payment of $2,000 taxed as an eligible termination payment, within 7 days of the execution of a deed; (b) that no party was admitting fault; (c) that the parties had agreed to a complete release of all past, present and future claims, as far as the law allows, excluding claims for superannuation or under workers’ compensation legislation; (d) that there would be mutual confidentiality obligations; (e) that there would be mutual non-disparagement that would apply to the entire Bravus Group; and (f) that Ms Williams would lodge a Form F50 once the $2,000 had been paid. [2026] FWC 2175 3 [13] Mr McManus’ statement outlines that Ms Williams agreed that she understood the terms and accepted the offer. [14] After the conciliation, the staff conciliator sent a letter to the parties that stated: “… Thank you for your involvement in the conciliation for this case. I confirm that the case has settled and note that the main terms of the agreement are: • Mutual releases • Mutual confidentiality • Mutual non disparagement • payment of a gross amount of $2000, taxed according to applicable law, What happens now The parties will write up the agreement (also called the ‘Terms of Settlement’). Please sign the agreement and send a copy to the other party. Also keep a copy for your records. Please do not send a copy to the Commission as we don’t keep your signed agreement. I confirm that the parties have agreed to waive the cooling off period that applied to this agreement. This ends the Commission’s role in the process. The Applicant will need to email a completed Notice of discontinuance (Form F50) with the Commission to udt@fwc.gov.au, and send a copy to the Respondent. Any agreed settlement payments or documents (for example a letter of resignation or statement of service) should be sent directly to the other party, not to the Commission. If any issues arise in implementing the terms of settlement, please contact the other party directly.” [15] On 24 November 2025, Ms Williams replied with the below: “… Following the conciliation meeting yesterday I wish to notify you that I no longer agree to the settlement terms discussed and I do not intend to sign the proposed Deed of Settlement. I am withdrawing my consent to the verbal agreement. …” [16] On 25 November 2025, Ms Williams emailed the Commission the below: “… Thank you for your time during the conciliation yesterday. I apologise for any inconvenience my change in decision may have caused you. [2026] FWC 2175 4 I am writing because shortly after the meeting concluded, I received an email from an external recruiter advertising a position that appears to be the same role previously performed by my colleague, Tyra. During the conciliation, I was advised that this role was considered Tyra’s position and that it could not lawfully have been offered to me. As this new information seems inconsistent with what I was told, I wanted to bring it to your attention as it may be relevant to the circumstances surrounding my redundancy. This is the reason I am withdrawing [my] decision from yesterday. I have provided a copy of the advertisement below and also the proposed restructure positions. Can you please advise any next steps available to me in light of this information?” [17] The matter was then allocated to my Chambers. 3. Legal principles regarding agreement [18] Parties to a dispute may agree to settle a matter on certain terms. If parties also agree that those terms will be dealt with by formal documentation, there are three ways in which the parties have agreed to resolve the dispute. The High Court in Masters v Cameron identified these as follows: …It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract. In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution.1 [19] The Full Bench of the Commission in Subeg Singh v Sydney Trains2 restated these scenarios and added a fourth: If parties who have been in negotiations reach agreement on terms of a contractual nature and also agree that those terms will be dealt with by subsequent formal documentation, there are several categories into which such negotiations fall. First, the parties reach finality, intend to be immediately bound, and propose restatement of the terms of settlement in a fuller or more precise form but not different in effect. Secondly, the parties have completely agreed all terms but performance of one or more terms is conditional on execution of a formal document. Thirdly, the parties did not intend to make a concluded bargain at all, unless and until they execute a formal contract. Fourthly, the parties intended to be bound immediately and exclusively by agreed terms while expecting to make a further contract in substitution containing, by concept, additional terms. [20] In the recent decision of Ockerby v The Trustee for Ron Farris Real Estate Unit Trust3, Deputy President Beaumont traversed the relevant case law on the principles regarding whether a binding settlement agreement has been reached between parties. I gratefully adopt [125] – [129] of the Deputy President’s decision and apply them in this matter. [2026] FWC 2175 5 4. Consideration 4.1 Ms Wiliams [21] Ms Williams submits that no concluded binding settlement was reached and that she at most, gave an “in-principle verbal indication during the conciliation”. Ms Williams further submits that the deed provided by Abott Point after the conciliation conference was materially broader than what she agreed to during the conciliation as there was no objective agreement on all the terms in the deed. Ms Williams says that the agreement during the staff conciliation conference dealt with payment, confidentiality and non-disparagement but that the deed imposed wider legal consequences. [22] Ms Williams also effectively contends that as she became aware of new facts relevant to the merits of her unfair dismissal application after the conciliation conference, this negated any agreement. [23] Lastly, Ms Williams submits that she was under significant psychological distress, which affected her ability to assess complex legal consequences. However, Ms Williams does not say that she lacked legal capacity. [24] I note that Ms Williams provided a significant amount of material addressing the merits of her unfair dismissal application. I do not detail it here as it is not relevant to the question I must determine. 4.2 Abbot Point [25] Abbot Point submits that the parties reached a binding agreement at the conciliation conference, which occurred by Ms Williams accepting Abbot Point’s offer. Abbot Point submits that the execution of a deed was not a necessary element of the agreement reached becoming binding, although it is a precondition of Abbot Point paying Ms Williams. Abbot Point contends that the agreement reached falls within the first type of agreements identified in Masters v Cameron. 4.3 Did the parties reach a binding agreement? [26] As noted earlier in this Decision, Ms Williams’ own evidence is that she did agree to a set of terms during the staff conciliation. Ms Williams’ contentions that she became aware of new information after the staff conciliation does not vitiate that agreement. Ms Watson’s evidence is vague and largely focused on Ms Williams’ emotional and mental state during the staff conciliation. [27] Mr McManus’ evidence is detailed and unchallenged. I also note that as a legal practitioner, he has professional obligations to the Commission. His evidence is a sound basis for fact-finding. [28] I accept Mr McManus’ evidence of the terms the parties agreed to at the end of the staff conciliation conference. I also accept Mr McManus’ evidence that the staff conciliator stated that the agreement was binding and that the parties had waived the cooling-off period. His [2026] FWC 2175 6 evidence is consistent with the email the staff conciliator sent to the parties detailed at [14] of this Decision and supports my finding that the parties intended to be bound immediately. [29] I have also reviewed the deed that Abbot Point sent to Ms Williams for her review. Ms Williams did not specifically identify any clauses that were contrary to the terms the parties agreed to, simply that they were broader. [30] The deed contains the clauses explicitly canvassed during the staff conciliation conference regarding payment; mutual release; non-disparagement; and confidentiality. [31] The deed also has recitals that outline Ms Williams employment history; her allegations against Abbot Point contained in her unfair dismissal application; and the history of the unfair dismissal application. I find that these recitals do not change the effect of the agreement reached by the parties. The deed does include further clauses, but I find that they pertain to administrative or operational aspects to the deed’s operation, such as definitions and how the deed may be varied and executed. I similarly find that they do not change the effect of the agreement reached by the parties. [32] Based on the above, I am satisfied that the parties reached a binding settlement agreement on 24 November 2025 and the type of agreement reached is of the first kind described in Masters v Cameron. That is, the parties reached finality as to the terms of an agreement, intended to be immediately bound, and proposed restatement of the terms of settlement in a fuller or more precise form but with no difference in effect. [33] In Gorman,4 Besanko J observed at [31]: An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim. [34] The agreement reached on 24 November 2025 extinguished Ms Wiliams’ unfair dismissal application. Ms Williams’ unfair dismissal application therefore has no reasonable prospects of success. 5. Order [35] For the reasons outlined above, I dismiss Ms Williams’ unfair dismissal application pursuant to s 587 of the Act. COMMISSIONER [2026] FWC 2175 7 Hearing details: Determined on the papers. Printed by authority of the Commonwealth Government Printer <PR810931> 1 (1954) 91 CLR 353 [360] – [61]. 2 [2017] FWCFB 4562 [53]. 3 [2025] FWC 3505. 4 Australian Postal Corporation v Gorman [2011] FCA 975.