UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2026 WAIRC 00167

DELIVERED : Monday, 23 March 2026

FILE NO. : U 105 OF 2024

Applicant

AND

David Aquailia Family Trust

Respondent

CatchWords : Industrial Law (WA) - Unfair dismissal application - Deed of settlement - Parties executed deed of settlement - Whether the Commission has jurisdiction to alter the terms of a deed of settlement - Commission does not have jurisdiction to alter the terms of a deed of settlement - Whether it is in the public interest for application to remain on foot - Public interest for parties to comply with agreement's reached - Not in the public interest for matter to proceed - Application dismissed

Legislation : Industrial Relations Act 1979 (WA)

Result : Application Dismissed

Representation:

Applicant : Ms S McCabe

Respondent : Mr I Bennett (of counsel)

Case(s) referred to in reasons:

Joseph Kluchar v Hamersley Iron Pty Ltd (2002) 82 WAIG 628

Maurice Bradbury v Jos Van Baren, John Denwick, Paul Gangemi and Ivan Hill, Management Agent, Proprietor of Great Western Real Estate (1995) 75 WAIG 2927

Prudential Assurance Co. Ltd. v McBains Cooper [2000] 1 WLR 2000; (2001) 3 All ER 1014

Reasons for Decision

1         Ms Stacey McCabe (applicant) applied to the Western Australian Industrial Relations Commission (Commission) on 23 October 2024, claiming that her dismissal from the David Aquailia Family Trust (respondent) was harsh, oppressive and unfair.

2         The applicant’s employment was terminated on 9 July 2024. Section 29(2)(a) of the Industrial Relations Act 1979 (WA) (IR Act) requires an unfair dismissal application to be made within 28 days of a dismissal. Therefore, this application is well beyond the prescribed timeframe. The Commission may accept an unfair dismissal application made outside of the prescribed timeframe if it is not unfair to do so.

3         The respondent contends that the dismissal was fair in the circumstances.

4         The applicant commenced employment with the respondent on or around 8 December 2022 and was engaged on a Sponsorship Visa Subclass 482 (Work Visa). The Work Visa was to expire on 14 July 2024.

5         On 16 September 2022, the applicant signed a contract of employment with the respondent which includes the following term concerning the requirement for an appropriate working visa at clause 2.2:

Your continued employment is contingent on having and maintaining an appropriate working visa. Where your visa expires, your employment will be terminated.

6         On 8 July 2024, the applicant notified the respondent of the expiry of the Work Visa and that she had not applied for a further working visa, nor made alternative arrangements to be able to continue to work lawfully in Australia.

7         The respondent and the applicant met the following day to discuss the applicant’s circumstances and ongoing employment.

8         Following the meeting, the respondent made inquiries with the relevant authorities. The respondent concluded that it would not be possible for the applicant to secure the same ongoing working rights and there would likely be an associated and indefinite delay in the applicant obtaining the necessary visa to lawfully work in Australia. Consequently, the respondent concluded that there would be a period in which the applicant would not be able to be employed by them.

9         On 9 July 2024, the Respondent confirmed in writing that the employment relationship was terminated citing the applicant’s inability to perform the inherent requirements of her employment, because of the expiry of the Work Visa and the absence of other arrangements. The respondent submits that it was not unfair, nor harsh, nor oppressive to dismiss the applicant because continuing to employ the applicant in circumstances in which she did not possess a valid visa would have meant employing her unlawfully.

10      The applicant argues that her dismissal was unfair because it was made four days before the Work Visa expired. The applicant submits four days was not sufficient time for her to arrange another sponsorship.

Timeline

11      The respondent reserved their position on the issue of the application being out of time and the Commission convened a conciliation conference on 3 April 2025. The parties did not reach agreement, and the Commission issued programming steps to hear and determine the issue of whether to accept the application outside the prescribed timeframe.

12      On 20 June 2025, the respondent informed the Commission that the parties had reached an in-principle settlement and requested the matter remain open while the parties formalised the terms of their agreement.

13      On 21 July 2025, in response to the Commission’s enquiry for a status update on the matter, the respondent advised that the parties were continuing to progress finalising their in-principle agreement.

14      An agreement to settle the issues between the parties was reached sometime in July 2025. The respondent provided a copy of the Deed of Settlement (Deed) recording the terms of the agreement signed by the applicant on 24 July 2025 and signed by the respondent on 29 August 2025.

15      On 3 September 2025, in response to the Commission’s further enquiry for an update, the respondent advised that their view was that all settlement actions had been completed. The only outstanding item was for the applicant to discontinue these proceedings as per the terms of the Deed.

16      On 4 September 2025, the applicant informed the Commission that she had not discontinued her application because she had not received the full payment of the agreed settlement sum. The applicant claimed that she was to receive $11,500.00 and says the payment made to her was only $6,745.00. The applicant attached a transaction record to the correspondence showing an employment termination payment of $11,500.00 and PAYG withholding payment of $4,755.00.

17      On this same date, the respondent emailed the Commission and the applicant explaining that the terms of the Deed expressly state that the monetary amount was subject to and less than any applicable taxation. Given the respondent had made the agreed payment to the applicant in accordance with the terms of settlement recorded in the Deed, the respondent requested that the applicant discontinue the proceedings as soon as possible.

18      The applicant replied stating that she had ‘agreed to $11,500 in my hand, not $11,500 tax deductable’.

19      On 12 September 2025 the respondent emailed the Commission and the applicant setting out their position along with extracts of the relevant terms of the Deed agreed between the parties and requested the applicant discontinue her application or that the Commission discontinue and close the proceedings because of the settlement reached.

20      The applicant emailed the Commission and the respondent reiterating her earlier position.

21      On 17 September 2025, the Commission notified the parties of a hearing for the applicant to show cause why the matter ought not be dismissed considering the agreement reached. The show cause hearing was listed for 8 January 2026.

22      At the show cause hearing listed on 8 January 2026, the respondent submitted a copy of the Deed. The applicant did not dispute the terms of the Deed which provided for payment less than and subject to applicable taxation. She did not dispute that she had signed the Deed.

23      The applicant submits that she had understood that during a Directions Hearing before the Commission on 3 June 2025, there had been an oral agreement for the respondent to pay her $11,500.00 in settlement of her claim.

24      The respondent contends that their position concerning any payment offered, had consistently been made and the parties’ discussions were always on the basis that the payment would be subject to the relevant taxation laws. The respondent submits that in all correspondence with the applicant, they had reiterated that the proposal extended was always stated to be less than applicable taxation.

25      The respondent says that the parties did not reach agreement at the Directions Hearing before the Commission on 3 June 2025, and any subsequent discussions were independent of the Commission. The respondent refers the Commission to clause 4E of the Deed, which states that the applicant freely entered the Deed after having the opportunity to consider the contents of the Deed, and obtain legal advice as she wished. The respondent says there is nothing surprising in the terms of the Deed, and it is consistent with the proposals that were put. The respondent submits that the applicant acknowledged the terms of the Deed, and that the terms were accepted both in principle and in writing.

26      The respondent submits that if the applicant refuses to discontinue the application in line with the terms of the Deed, the application ought to be dismissed.

The Law

27      I am satisfied that a compromise was reached between the applicant and the respondent in July 2025, in settlement of the applicant’s claim. The settlement agreement was recorded in the Deed signed by the applicant on 24 July 2025 and signed by the respondent on 29 August 2025.

28      The parties have reached a compromise agreement, and this ends the dispute between them: Prudential Assurance Co. Ltd. v McBains Cooper [2000] 1 WLR 2000; (2001) 3 All ER 1014.

29      The Commission has previously considered similar circumstances in Maurice Bradbury v Jos Van Baren, John Denwick, Paul Gangemi and Ivan Hill, Management Agent, Proprietor of Great Western Real Estate (1995) 75 WAIG 2927 (Bradbury) and Joseph Kluchar v Hamersley Iron Pty Ltd (2002) 82 WAIG 628. In these matters, the Commission dismissed the application because it was not in the public interest that they proceed.

30      In this matter, the Deed required the respondent to pay the applicant a monetary amount. The respondent has made payment in the terms required by the Deed setting out the terms of the agreement between the parties.

31      The applicant’s understanding that she was to receive $11,500.00 in her hand, is not reflected in the terms of the Deed. The applicant’s understanding of the terms of settlement cannot form the basis for the application to continue when this understanding conflicts with the expressly recorded terms of settlement.

32      The applicant signed the Deed on 24 July 2025, which was after 3 June 2025. Consequently, any terms of settlement the applicant understood to have been considered on 3 June 2025, have been overtaken by the terms of the Deed. The Commission does not have the jurisdiction and necessary powers to adjust the terms of the Deed as requested.

33      In Bradbury the Full Bench observed:

… It is certainly not in the public interest, too, that the Commission should have proceeded to hear something which had been settled by agreement, even if, as a matter of law, the Commission could have heard the matter, which it could not have. The Commission did not err in the exercise of its discretion or otherwise (2928).

34      I am of the view that it is in the public interest that the parties be held to their agreements. It is not in the public interest for an application to be pursued when a deed of settlement has been signed and agreed between the parties.

35      For these reasons, I exercise the Commission’s powers under s 27(1)(a) of the IR Act and dismiss the application.