Picture this. You sit through a Fair Work conciliation. You land a deal. Everyone shakes hands, metaphorically or otherwise. You go home thinking it’s over.
A week later, the employee says they’ve changed their mind. Sixteen months and four Fair Work decisions later, you’re finally done.
That’s not a hypothetical. It’s what happened to Westpac in Tran v Westpac Banking Corporation [2026] FWCFB 287. And while Westpac won every round, “winning” here still looks a lot like losing.
What Happened in Tran v Westpac?
In 2023, a Westpac employee’s branch closed. The bank redeployed him to what it said was a directly comparable role, which meant no redundancy pay. He accepted the new role but later raised concerns that the redeployment was really a redundancy in disguise. The bank investigated his complaint and, in July 2024, told him no further action would be taken.
Here’s how the rest played out:
- May 2025: his employment ended because he couldn’t meet the inherent requirements of his role. He lodged an unfair dismissal claim.
- 10 July 2025: at conciliation, he verbally agreed to settle for 12 weeks’ pay.
- 17 July 2025: he hadn’t signed the deed, decided he was owed redundancy pay instead, and told the bank and the Commission he was withdrawing his agreement.
- August 2025: the Commission dismissed his unfair dismissal claim because a binding deal had been reached at conciliation. A Full Bench later refused permission to appeal.
- December 2025: he came back through a different door, lodging a dispute under the bank’s old enterprise agreement about the 2023 redeployment.
- April 2026: the Commission dismissed that dispute for lack of jurisdiction.
- 30 October 2026: a Full Bench dismissed his appeal.
Four decisions. Two Full Benches. A barrister and a law firm. All after a deal was done.
Why Did the Employee Lose?
Not for the reason you’d expect. The Full Bench didn’t throw the dispute out because of the settlement. It threw it out because he’d sat on it too long.
The dispute clause had no time limit. But the Full Bench said that doesn’t mean a dispute stays alive forever. After the bank gave its final answer in July 2024, he took no step to push the redundancy issue for around 10 months while still employed. When he did go to the Commission after his dismissal, he chose unfair dismissal, not this dispute. Objectively, the Full Bench said, he’d stopped pursuing it.
So the bank won. But only because of how long he waited.
Where the Bank Lost Ground
This is the bit employers should read twice. The bank argued that he hadn’t followed the steps in the dispute clause, so the Commission couldn’t touch it. The Full Bench disagreed.
The clause said an employee “should” try their manager first, and “may” escalate further, “if appropriate”. That soft language meant the steps weren’t rigid gates. His emails to HR, the regional manager’s reply and his formal complaint were enough to tick off the first three steps. The bank even skipped a step itself by escalating his questions straight to a senior leader, and the Full Bench said that was fine.
In plain English: your everyday HR emails can become your formal dispute process without anyone realising.
Our Take: The System Isn’t Built for Finality
Let’s call it what it is. A deal at conciliation should be the end. Instead, the system let an employee who had already settled keep knocking on different doors at the Commission for over a year.
And this was Westpac. A bank with an HR department, an investigations team and lawyers on tap. Now imagine you’re a small business owner with 20 staff and no HR team. Every one of those rounds means time off the tools, legal fees and sleepless nights. Costs orders in the Commission are only available in narrow circumstances, so most of that money isn’t coming back.
Is the system cooked? It got the answer right, eventually. But a system where you can win every round and still lose 16 months isn’t working for employers. Finality matters. Right now, there isn’t much of it.
So until that changes, the job is to make your deals as watertight as possible from day one.
What Should Employers Do?
At Conciliation
- Get the terms written down and signed on the day if you can. A verbal deal can be binding, but paper ends arguments.
- Make the release wide. It should cover all claims arising from the employment, including enterprise agreement, award, NES and redundancy claims, not just the unfair dismissal.
- Ask yourself what else the employee has complained about in the past. If there’s an old grievance, name it in the release.
Before It Ever Gets There
- Know your dispute clause. If it says “should”, “may” or “if appropriate”, assume the steps are flexible.
- Treat employee emails to HR as possible disputes, not just questions.
- Close grievances in writing. Say clearly that the matter is resolved and closed under your dispute process.
- Keep records. The bank’s case was weakened by redacted emails and missing documents. Don’t let that be you.
Need a Hand?
If you’re heading into a Fair Work conciliation, or you’ve got a grievance that won’t die, talk to HR Gurus. We’ll cut through the BS, help you close it out properly, and give you a clear, risk-managed path forward.
Not sure where your gaps are? Take our free HR Compliance Scorecard and find out in a few minutes.
Frequently Asked Questions
Is a verbal settlement at Fair Work conciliation binding?
It can be. In Tran v Westpac, the Commission found a binding agreement was reached at conciliation, even though the employee never signed the deed. Getting terms in writing on the day is still the safest option.
Can an employee back out of a settlement after conciliation?
Changing their mind isn’t enough if a binding agreement has already been reached. Whether an agreement was reached depends on what was actually agreed, so clear written terms matter.
Is there a time limit to refer an enterprise agreement dispute to Fair Work?
Only if the agreement sets one. But the Full Bench in Tran v Westpac said a dispute can’t be referred in perpetuity. If an employee takes no action after a final answer, the dispute may be treated as over.
Do employees have to follow every step of a dispute resolution clause?
It depends on the wording. Where steps use flexible language like “may” or “if appropriate”, the Commission is unlikely to treat them as strict preconditions.
Can a former employee raise an enterprise agreement dispute?
It’s complicated. The Full Bench in Tran v Westpac left open whether a dispute could be pursued under an agreement that had stopped operating. Get advice if this comes up.
Can employers recover legal costs in the Fair Work Commission?
Only in limited circumstances, such as where a claim is vexatious or has no reasonable prospect of success. In most cases, each party pays its own costs.
This article is general information only and isn’t legal advice. For advice on your situation, get in touch with HR Gurus.