Annette Tselikas v Cuscal Limited - [2023] FWC 3171

[2023] FWC 3171

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Annette Tselikas
v

Cuscal Limited

(C2023/4740)

COMMISSIONER CRAWFORD

SYDNEY, 1 DECEMBER 2023

General protections dismissal dispute – jurisdictional objection – deed signed by employee – potential application to set aside deed - whether adjournment should be granted – application to be dismissed if proceedings not commenced

BACKGROUND

Annette Tselikas (Ms Tselikas) has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Ms Tselikas’ allegations that she has been dismissed from her employment with Cuscal Limited (Cuscal) in contravention of Part 3-1 of the FW Act.

Ms Tselikas commenced full-time employment with Cuscal on 3 July 2023 in the position of Executive Assistant to the Chief People Officer. Cuscal terminated Ms Tselikas’ employment on 17 July 2023 relying on the probationary period in her employment contract and alleged performance issues during this period.

Ms Tselikas signed a deed of release on the final day of her employment, 17 July 2023.[1] The deed required Cuscal to make an ex-gratia payment of $2,500 gross to Ms Tselikas in addition to her entitlement to a week of pay in lieu of notice for termination and accrued annual leave. The deed contains relatively standard mutual release and bar to proceedings clauses. There is no dispute that Ms Tselikas signed the deed and that if the deed is enforceable, the deed will operate to release Cuscal from the general protections claim and operate as a bar or full and complete defence to the general protections claim.

Ms Tselikas filed a Form F8 general protections application involving dismissal on 3 August 2023, which was within the 21-day filing period.

Cuscal filed a Form F8A response to general protections claim on 23 August 2023. The response identified a jurisdictional objection based on the deed of release. Cuscal’s response stated that Ms Tselikas is jurisdictionally barred from bringing the proceeding because of the release and bar to proceeding clauses in the deed.

Given the jurisdictional objection, I listed the application for Mention/Directions on 15 September 2023. Ms Tselikas represented herself at the Mention/Directions and did not oppose me granting permission for Cuscal to be legally represented for the Mention/Directions or any hearing in relation to the jurisdictional objection. I granted Cuscal permission to be represented for the Mention/Directions and any hearing regarding the jurisdictional objection on the basis I was satisfied it would enable the matter to be dealt with more efficiently, taking into account its complexity. Cuscal was represented at the Mention/Directions by Naomi Cooper from Johnson Winter Slattery. During the Mention/Direction I indicated the jurisdictional objection would need to be determined before a conference is convened based on the Federal Court’s judgment in Coles v Milford.[2] I also raised with Ms Tselikas that if she is seeking to contest the validity of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Annette Tselikas v Cuscal Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FWC 3171
Decision Date: 1 DECEMBER 2023

CaseChat Overview and Summary

In the case of Annette Tselikas v Cuscal Limited, the Fair Work Commission (FWC) was tasked with determining a jurisdictional objection raised by Cuscal, as well as deciding whether to dismiss or adjourn Ms. Tselikas' application under the Fair Work Act 2009 (FW Act). The dispute arose from Ms. Tselikas' allegation that her dismissal from employment with Cuscal contravened the general protections provisions of the FW Act. Cuscal objected to the jurisdiction of the FWC on the basis that Ms. Tselikas had signed a deed of release that included a bar to proceedings clause, which they argued extinguished her claim. The central legal issues were whether the FWC had jurisdiction to set aside the deed of release and, if not, whether Ms. Tselikas' application should be dismissed or adjourned to allow her to seek relief in the courts.

The FWC found that it did not have the jurisdiction to set aside the deed of release as it was constrained by the powers provided under the FW Act. The Commission relied on Federal Court judgments which held that an accord and satisfaction, such as the deed in this case, could extinguish a cause of action and that the FWC does not have the power to set aside such agreements. Given that the deed currently operated to extinguish Ms. Tselikas’ cause of action, the FWC did not have jurisdiction to issue a certificate under section 368(3) of the FW Act. Furthermore, the FWC determined it had jurisdiction to dismiss the application under section 587(1) of the FW Act or to decline to act on the application for want of jurisdiction. However, the FWC exercised its discretion under section 589 of the FW Act to adjourn the dismissal of the application to provide Ms. Tselikas with an opportunity to seek advice on contesting the deed and to potentially commence court proceedings. The application would be dismissed unless the FWC received evidence of court proceedings being initiated by December 20, 2023.

The decision underscores the complexity of jurisdictional issues in general protections applications and the importance of the objects of the FW Act in guiding the exercise of discretion by the FWC. The FWC balanced the need for procedural fairness and the objects of protecting workplace rights and providing effective relief against the potential prejudice to the parties from different outcomes.

Orders