Amy Wilson v Wilson Pateras Accounting Pty Ltd

[2021] FWC 5988

[2021] FWC 5988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Amy Wilson
v
Wilson Pateras Accounting Pty Ltd
(U2021/4699)

COMMISSIONER MIRABELLA MELBOURNE, 29 SEPTEMBER 2021

Application for an unfair dismissal remedy

[1] This decision concerns an application by Ms Amy Wilson for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (Cth) (the Act).

[2] Ms Wilson contends that she was unfairly dismissed from her employment with Wilson Pateras Accounting Pty Ltd (the company) where she had worked from 13 July 2020 until her employment ended on 28 May 2021. She filed her application for an unfair dismissal remedy on 31 May 2021. Ms Wilson says she felt pressured into signing a Deed of Release (the Deed) 1 and is seeking reinstatement.

[3] The company objects to the application on jurisdictional grounds stating that Ms Wilson, having been terminated, had signed the Deed and seeks that her application be dismissed under s. 587 on the grounds that the application is frivolous, vexatious or has no reasonable prospects of success.

[4] The matter was listed for Conciliation on 23 June 2021 but did not resolve. At the Mention/Directions on 8 July 2021 the matter was listed for a Jurisdictional Hearing and directions were issued.

[5] I heard the matter on 5 August 2021. The company was represented with permission.

[6] The issue for me to determine is whether there remains a matter before the Fair Work Commission (the Commission) or whether the Deed was binding and brought an end to Ms Wilson’s unfair dismissal application, such that the application should now be dismissed.

The evidence

[7] The company provided outlines of submissions, and gave evidence that, after a performance management process lasting approximately 9 months, Ms Wilson’s employment was terminated on 28 May 2021 and that she signed the Deed on the same day. The Deed was open for acceptance until 5.00pm, 31 May 2021.

[8] The company contends that Ms Wilson had accepted the Deed on multiple occasions, 2 and had failed to revoke it when given the opportunity to do so.

[9] Ms Wilson provided an outline of submissions and a witness statement. She agrees that she broadly accepted the Deed, that she stated this verbally, and that she returned the signed Deed on 28 May but that her acceptance ‘was dependent upon clarification of the restrictions noted in the Deed of Release.’ 3

[10] The company gave evidence that it clarified the Deed’s restraint clause, explaining to Ms Wilson that it did not prevent her from being employed in another accounting firm. 4 Further, that the restrictions in the restraint clause already applied as they were part of her employment agreement, effectively meaning that the restraints already applied to Ms Wilson, irrespective of what was included in the Deed.5

[11] Ms Maree Pateras, General Counsel for the company, gave evidence that she provided further clarification on the restraint clause to Ms Wilson on the morning of 31 May 2021 and that Ms Wilson confirmed that she did understand the operation of the restraint clause in that it did not prevent her from working for another accounting firm. Ms Pateras gave further evidence that during this discussion she responded to questions from Ms Wilson regarding her notice period and entitlements and that:

“Ms Wilson stated that she did not want to get further legal advice but believed she could contribute further to Wilson Pateras and asked whether Wilson Pateras would reconsider its decision … I specifically asked Ms Wilson if she still accepted the offer or whether she wanted to consider it further and obtain legal advice. Ms Wilson said no, she understood everything and appreciated speaking with me, appreciated Wilson Pateras and wanted to end things with a good relationship.” 6

[12] Ms Wilson says she does not recall whether she said that she would not seek legal advice. 7

[13] Ms Wilson gave evidence that she made numerous requests of the company to be re-employed by them. 8

[14] Ms Wilson gave evidence that:

“…if I knew the Deed of Release would restrict my right to make an unfair dismissal claim, I would not have even considered it, because the termination decision made by the Respondent was harsh and unfair, and inconsiderate of my future career with the dedication and devotion I have put into the position.” 9

[15] At the hearing, Ms Wilson was asked about her intentions in signing the Deed. She was asked the following question: 10

“When you signed the deed and had it witnessed what did you think you were doing?”

[16] Ms Wilson responded:

“I think I was thinking I wanted to get this matter finalised as soon as possible, so I was sort of thinking get this email first, think about that, and then I can get my question clarified, and then we can get this matter finalised. That's what I was thinking.”

[17] In accordance with the Deed, the employer gave Ms Wilson an executed Deed and signed statement of service 11 and deposited into her bank account an eligible termination payment of $6,868.80.

Consideration

[18] After considering all of the evidence, I am satisfied that the parties entered into a binding settlement agreement through the execution of the Deed, binding each party to carry out each of its agreed terms to execution. It is a complete answer to Ms Wilson’s unfair dismissal claim.

[19] In Australian Postal Corporation v Gorman, Besanko J held that the existence of a binding settlement or ‘accord and satisfaction’ extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. 12

[20] His Honour stated:

“[33] There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.” 13

[21] As can be seen from Australian Postal Corporation v Gorman, if there is a binding agreement between the parties, the Commission has the power under s. 587(1) of the Act to dismiss an application on the basis that it has no reasonable prospects of success.

[22] Section 587(1) of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC 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.”

[23] As I am satisfied that, in the circumstances before me, there is a binding agreement between the parties which has extinguished the application, I consider it appropriate and open to me to exercise my power under s. 587(1)(c) of the Act to dismiss the application for an unfair dismissal remedy lodged by Ms Wilson on the basis that it has no reasonable prospects of success. An order to this effect will be issued with this Decision.

COMMISSIONER

Appearances:

Ms A Wilson, Applicant.
Ms Luttrell for the Respondent.

Hearing details:

2021
Melbourne (by video)
August 5.

Printed by authority of the Commonwealth Government Printer

<PR734309>

 1   Exhibit C Applicant’s Witness Statement, paragraph 27.

 2   Exhibit A Witness Statement of Maree Christine Pateras.

 3   Exhibit C Applicant’s Witness Statement, paragraph 28.

 4   Exhibit A Witness Statement of Maree Christine Pateras, paragraph 21; attachment MP7.

 5   Exhibit A Witness Statement of Maree Christine Pateras, paragraph 23; attachment MP9.

 6   Exhibit A Witness Statement of Maree Christine Pateras, paragraph 26; attachment MP11.

 7   Exhibit C Applicant’s Witness Statement, paragraph 33.

 8   Exhibit C Applicant’s Witness Statement, paragraph 32.

 9   Exhibit C Applicant’s Witness Statement, paragraph 43.

 10   Transcript PN287.

 11   Exhibit A Witness Statement of Maree Christine Pateras, paragraph 29.

 12   Australian Postal Corporation v Gorman [2011] FCA 975, [31].

 13 Ibid. [33].