Background
Navneet Kaur was dismissed from her employment with the Commonwealth Bank of Australia (CBA) in April 2024. She promptly filed an unfair dismissal application with the Fair Work Commission. The matter proceeded to conciliation, and in May 2024 the parties reached a settlement: the Bank agreed to pay an amount equivalent to six weeks’ pay, and Ms Kaur agreed to a broad release of all claims arising from her employment and its termination. Ms Kaur signed the deed of release on 30 May 2024, having had approximately two weeks to consider its terms after the conciliation conference. She had also made amendments to the deed before signing, and accepted payment under it.
In March 2025, Ms Kaur commenced fresh proceedings in the Federal Circuit and Family Court of Australia (Division 2) alleging her dismissal contravened s 772 of the Fair Work Act 2009 (Cth) — a provision within Part 6-4 of that Act dealing with unlawful termination. The Bank applied for summary judgment. Judge Young granted that application in November 2025 (Kaur v Commonwealth Bank of Australia [2025] FedCFamC2G 1931) on two independent grounds: (1) Ms Kaur had never obtained a certificate from the Fair Work Commission attesting to failed conciliation as required before a court application could be made, and (2) the deed of release stood as a complete bar to her claim, the primary judge rejecting Ms Kaur’s duress argument after hearing cross-examination of witnesses.
Ms Kaur filed a notice of appeal in the Federal Court in December 2025, incorrectly stating that leave had already been granted. When this was identified at a case management hearing in May 2026, Snaden J treated the notice as an application for leave to appeal — which was itself out of time — and listed the matter for hearing on 9 June 2026. Ms Kaur appeared unrepresented.
The Court’s Holding
Snaden J dismissed the application for an extension of time and leave to appeal. The applicable test required Ms Kaur to demonstrate both that the primary judgment was attended by sufficient doubt to warrant reconsideration on appeal and that substantial injustice would result if it were allowed to stand (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397). The court found no such doubt on either ground on which summary judgment had been granted.
On the jurisdictional ground, the court held it was inarguably correct that Ms Kaur’s failure to obtain a Fair Work Commission certificate — whether under s 778 (Part 6-4 pathway) or s 368 (Part 3-1 pathway) — was fatal to her court application. The court also noted that s 723 of the Fair Work Act independently barred a Part 6-4 application by a person, like Ms Kaur, who was entitled to bring a claim under Part 3-1. Ms Kaur’s submission that the primary judge was obliged to inform her of these requirements was rejected as plainly wrong: the onus lay with Ms Kaur alone to establish jurisdictional competence.
On the deed of release, the court found the primary judge’s detailed findings — based on oral and affidavit evidence including cross-examination — left virtually no room for doubt. The evidence showed Ms Kaur had two weeks to consider the deed, made amendments to it before signing, accepted payment under it, and sent emails demonstrating she understood she was settling the matter. The primary judge’s rejection of the duress claim was described by Snaden J as “inarguably (to the point of obviously) correct.” Either conclusion independently warranted summary dismissal, and no error of legal principle was identified. The court therefore declined to address the remaining discretionary criteria for an extension of time, as the absence of any serious prospect of success on appeal was itself sufficient to dispose of the application.
Key Takeaways
- A party seeking to appeal an interlocutory summary judgment must obtain leave, and an application made out of time additionally requires an extension — both turn critically on whether the proposed appeal has sufficient merit.
- A broad deed of release executed after Fair Work Commission conciliation will bar subsequent court proceedings unless the applicant can demonstrate vitiating circumstances such as duress; the evidentiary bar is high, and factors such as a two-week review period, amendments made by the applicant, acceptance of payment, and contemporaneous emails demonstrating comprehension will strongly militate against any duress finding.
- Under the Fair Work Act 2009 (Cth), a court application under Part 6-4 (unlawful termination) requires a prior Fair Work Commission certificate of failed conciliation under s 778, and is independently barred by s 723 where the applicant was entitled to proceed under Part 3-1 instead; failure to satisfy either requirement is fatal to jurisdiction.
- Self-represented litigants are not relieved of the obligation to establish that their application is jurisdictionally sound; courts have no duty to advise parties of procedural or statutory prerequisites.
Why It Matters
This decision reinforces the significant finality attached to Fair Work Commission settlement deeds. Employers and employees alike should understand that broad deed of release clauses — covering all present and future claims arising from employment and termination — will ordinarily be enforced, and that personal distress at the time of settlement, without more, will not constitute duress sufficient to avoid a deed’s effect, particularly where the signatory had time to reflect, made amendments, and accepted the benefit of the agreement.
The case also serves as a clear reminder of the strict procedural architecture governing unlawful termination claims under the Fair Work Act. The requirement to obtain a Fair Work Commission certificate before commencing court proceedings is a jurisdictional prerequisite, not a mere formality; and the Part 6-4 pathway is not an available alternative for employees who could have used the general protections provisions in Part 3-1. Employees and their advisers must carefully identify and satisfy the correct statutory pathway before filing in court, or risk summary dismissal regardless of the underlying merits of the substantive claim.