Amie Basso Bondini v Lululemon Athletica Australia Pty Ltd

[2013] FWC 758

[2013] FWC 758

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amie Basso Bondini
v
Lululemon Athletica Australia Pty Ltd
(U2012/14040)

COMMISSIONER GOOLEY MELBOURNE, 4 FEBRUARY 2013

Application for unfair dismissal remedy.

[1] Ms Amie Bondini (the Applicant) was employed by Lululemon Athletica Australia Pty Ltd (the Respondent) from 25 November 2011 until her employment was terminated on 21 September 2012.

[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that she was unfairly dismissed. The application was referred to conciliation on 1 November 2012.

[3] At the conciliation agreement was reached to settle the matter. It appears from documents forwarded to Fair Work Australia that prior to 13 November 2012 there was an exchange of documents between the parties about the terms of settlement. On 13 November 2012 the solicitor for the Applicant forwarded to the Respondent the Applicant’s resignation which was said to be effective as of 21 September 2012. That email noted that the Respondent had made alterations to the deed and the Applicant was considering those alterations. On 23 November 2012 the Applicant forwarded to the Respondent a copy of a revised deed. That email advised the Respondent to contact the Applicant’s solicitor if it had any questions. The deed was not signed by the Applicant. Despite this, on 30 November 2012 the Respondent forwarded to the Applicant by electronic funds transfer the monies payable under the deed and the monies were accepted by the Applicant.

[4] On 6 November 2012 contact was made with Fair Work Australia by the Applicant’s support person asking if there was anything the Applicant could do before she signed the notice of discontinuance. On 7 December 2012 the Applicant’s support person advised Fair Work Australia that despite the matter being settled and that the employer had paid the money the Applicant had not signed the deed. She asked if the Applicant could return the money and have the matter determined by Fair Work Australia. On 18 December 2012 an employee of Fair Work Australia left a message for the Applicant’s support person.

[5] On 20 December 2012 the Respondent emailed the Applicant asking for a copy of the signed deed and the notice of discontinuance.

[6] A further email was sent by the Applicant’s support person to Fair Work Australia on 24 December 2012 asking for a response to the 7 December email.

[7] On 28 December 2012 the Applicant’s support person forwarded a copy of the unsigned deed to Fair Work Australia and advised that if the unfair dismissal matter were heard the Applicant would repay the monies paid to her by the Respondent.

[8] On 7 January 2013 the Applicant’s support person advised the Fair Work Commission, that the Applicant’s solicitor was intending filing a notice of discontinuance. In a further email sent the same date the Applicant’s support person asked if it was too late to have a hearing and a decision of the Fair Work Commission. In further emails sent on 7, 8 and 9 January 2013 the Applicant’s support person forwarded information in support of the Applicant’s unfair dismissal application.

[9] On 10 January 2013 I directed that an email be sent to the Applicant as follows:

“Commissioner Gooley has considered your application for your unfair dismissal claim to be heard.

As this matter was settled at conciliation and you have received the monies payable under the terms of the settlement and, in accordance with the terms of settlement you tendered your resignation, Commissioner Gooley has formed the preliminary view that your application should be dismissed as the application has no reasonable prospects of success (see section 587 of the Fair Work Act 2009 and the decision of the Full Bench of Fair Work Australia in Curtis v Darwin City Council[2012] FWAFB 8021]).

Please provide by close of business on 18 January 2013 any submissions you wish to make on why the application should not be dismissed.”

[10] On 18 January 2013 the Applicant provided submissions in support of her unfair dismissal claim. She did not in make any submissions about the agreement reached between the parties to settle the matter. Her complaint about the terms of settlement seems to be that it included a statement “the respondent denies the allegations.” In the terms of settlement sent to the Respondent by the Applicant’s solicitors this term was deleted and as the Respondent paid the Applicant the monies payable under the terms of settlement after it received that version of the terms of settlement it can be assumed that they accepted the deletion.

[11] Section 587 of the FW Act provides as follows:

“587 Dismissing applications

(1) Without limiting when FWC may dismiss an application, FWA may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[12] The question that needs to be determined was whether the parties agreed to settle the matter or whether the settlement was conditional on the parties signing the terms of settlement.

[13] The fact that the terms of settlement were not signed does not mean there was not an agreement to settle the matter.

[14] It is clear from the conduct of the parties in complying with the terms of settlement, that the parties did not intend that their agreement be conditional on the parties signing the terms of settlement. The Applicant’s solicitor, acting on her instructions, forwarded both the Applicant’s resignation and the final version of the terms of settlement to the Respondent. The Respondent then paid the monies owed under the terms of settlement to the Applicant.

[15] It is evident from the emails sent to the Fair Work Commission that the Applicant changed her mind about settling the matter and now wants her day in court.

[16] While the Applicant’s representative suggested in her email of 6 December 2012 that the Applicant was under some disability at the time she agreed to the terms of settlement at the conciliation conference, she was subsequently legally represented and her solicitor did not advise the Respondent at any time that the Applicant wished to resile from her agreement. Quite the contrary the Applicant’s solicitors presumably acting on the Applicant’s instructions revised those terms of settlement provided by the Respondent to delete words the Applicant did not agree to and forwarded the terms of settlement to the Respondent. There is no evidence before the Commission which would enable it to find that the terms of settlement were entered into by the Applicant when she was under such a disability that she should not be held to her agreement. There is also no suggestion of duress or unconscionability.

[17] In Zoiti-Licastro v Australian Taxation Office 1 the Full Bench of the Australian Industrial Relations Commission said:

“Where the Commission finds that there is a complete answer to the applicant’s claim and dismisses the claim, there is no substance in any suggestion that the Commission has breached its duty to hear the application. And subject to the observance of the rules of natural justice, it is highly undesirable that the parties should be put to the expense of a full hearing when it is clear at the outset that the claim cannot succeed. Take a case in which there is a duly executed settlement agreement in evidence. Subject to the resolution of any argument about the binding nature of the agreement, the settlement would provide a complete answer to the claim and there would be no point in hearing the other evidence.”

[18] In Australian Postal Corporation v Gorman 2 the Federal Court considered whether Fair Work Australia could dismiss an application for an unfair dismissal remedy in circumstances where Mr Gorman had not signed the terms of settlement and argued the there was no binding agreement. Senior Deputy President O’Callaghan had found that despite Mr Gorman not signing the terms of settlement that there was binding agreement3 and dismissed the application pursuant to s.587 of the FW Act on the grounds that it was frivolous or vexatious. That decision was overturned by a Full Bench.4 The Full Bench did not accept that there was a binding agreement. It also held that s.587(1)(b) required a finding that the application or the continuation of the application is frivolous or vexatious.5⁶

[19] Besanko J of the Federal Court held that the Full Bench misconstrued s.587(1) of the FW Act. His Honour held that Fair Work Australia was able to “recognise a binding settlement agreement.” His Honour also held that “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.” 7

[20] I find therefore that the agreement reached between the Applicant and the Respondent is a complete answer to the Applicant’s claim for unfair dismissal and I therefore dismiss the application on the basis that it has no reasonable prospects of success.

COMMISSIONER

 1 (2006) 154 IR 1

 2 [2011] FCA 975

 3   [2010] FWA 7423

 4   [2010] FWAFB 9413

 5   Ibid at [15]

6 [2011] FCA 975 at [35]

 7   Ibid at [31]

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