Annette Tselikas v Cuscal Limited
[2023] FWC 3171
•1 DECEMBER 2023
| [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 deed, the Commission is unlikely to have jurisdiction to set aside the deed and that she should seek legal advice in relation to this issue.
Following the Mention/Directions hearing, I issued directions for the filing of material in relation to Cuscal’s jurisdictional objection and listed that issue for hearing on 23 October 2023. Cuscal filed a submission in accordance with the directions on 29 September 2023.
On 10 October 2023, Ms Tselikas submitted a request for the due date for her material to be extended by four to six weeks. Ms Tselikas relied on difficulties she was having getting legal assistance and issues with her mental health. Cuscal objected to the adjournment on the ground that the delay was excessive and unreasonable. I decided to grant the extension given Ms Tselikas’ mental health issues and because I was hopeful it would enable her to seek legal advice about whether the Commission can set aside the deed. I set a new hearing date of 24 November 2023.
On 17 November 2023, Ms Tselikas filed material in opposition to Cuscal’s jurisdictional objection.
Upon reviewing the material filed by Ms Tselikas prior to the hearing, it was apparent that the material was primarily directed at the issue of whether the deed should be set aside because it was signed under duress and because Ms Tselikas did not have sufficient mental capacity when she signed the deed. As a result, an email was sent to the parties by my chambers on 23 November 2023. The email put Ms Tselikas on notice that her material does not address the threshold issue of whether the Commission has jurisdiction to set aside the deed. The email also put Cuscal on notice that I would be seeking submissions at the hearing regarding whether the application should be dismissed or adjourned, if I formed the view there was no jurisdiction to set the deed aside.
Ms Tselikas represented herself at the hearing on 24 November 2023 with support from her friend, Carlie Silva. Cuscal was represented by Rebecca Gall, of counsel, instructed by Ms Cooper.
At the beginning of the hearing, I heard from both parties concerning the issue of whether the Commission has jurisdiction to set aside the deed of release. Cuscal argued it is clear the Commission does not have jurisdiction to grant equitable relief concerning the deed and the Commission’s powers are limited to those provided in the FW Act. Ms Tselikas pointed out that there are examples of decisions from the Commission which have assessed whether there are grounds to set aside a deed. Ms Tselikas conceded that the Commission had not proceeded to set aside a deed in any of these cases. Ms Tselikas did not refer to any section of the FW Act that could be relied upon to set aside a deed.
After hearing from the parties, I determined that I did not have jurisdiction to set aside the deed. I gave brief oral reasons for this decision. I was not satisfied any provision of the FW Act could be relied upon to set aside the deed of release and that the Commission’s powers as a statutory tribunal are limited to those contained in the FW Act.
The hearing then proceeded concerning the discretionary issue of whether Ms Tselikas’ application should be dismissed, as sought by Cuscal, or adjourned for a further period to enable Ms Tselikas to pursue a court application to have the deed set aside, as sought by Ms Tselikas.
I also raised the possibility of a certificate being issued pursuant to s.368(3) of the FW Act. This would be based on satisfaction that the existence of the deed meant that there was no prospect of the dispute being resolved. Both parties opposed this course of action. Cuscal relied on the Coles v Milford judgment to argue its jurisdictional objection must be resolved by the Commission before a certificate is issued. Ms Tselikas was concerned that she would not be able to file a court application within 14 days of a certificate being issued due to her not currently having legal representation and her mental health difficulties.
MATERIAL FILED
Cuscal
Cuscal relied on a bundle of documents as evidence in support of its jurisdictional objection and its position that Ms Tselikas’ application should be dismissed. The bundle included:
· An email from Kathryn Millar (Head of People and Culture Operations) to Ms Tselikas dated 20 July 2023.
· The deed of release signed by Ms Tselikas on 17 July 2023.
· Two payroll documents which confirm Cuscal made the ex-gratia payment in accordance with the deed.
I marked these documents Exhibit R1.
Cuscal also relied on an outline of submissions dated 29 September 2023, an outline of oral argument provided by Ms Gall at the start of the hearing, and oral submissions from Ms Gall.
At the end of the hearing, Ms Gall provided Cuscal’s position regarding what should occur if I were minded to grant an adjournment instead of dismissing the application. Cuscal proposed that I should dismiss the application if the Commission is not advised within 14 days that a court application has been commenced by Ms Tselikas.
Ms Tselikas
A large portion of the material filed by Ms Tselikas was directed at the issue of whether the deed should be set aside and hence was not relevant to the issue of whether her application should be dismissed or adjourned.
Ms Tselikas relied on the following evidence in support of her position that her application should be adjourned for a further period to allow her to commence a court application to set aside the deed:
· A statement from Ms Tselikas dated 15 November 2023. I only admitted the following sentence from this statement because I did not consider the remainder of the statement to be relevant: “Please note I have been unable to secure any legal advice as I was knocked back through Legal Aid and have been unable to find anyone willing to assist due to my financial capacity.” I marked this statement Exhibit A1.
· Ms Tselikas also provided oral evidence in chief regarding steps she has taken to secure legal assistance since the Mention/Directions hearing on 15 September 2023. Ms Tselikas was cross-examined on this evidence by Ms Gall.
· A letter from a trauma counsellor, Kate Kernick, dated 17 November 2023. I marked this letter Exhibit A2.
· A letter from Carlie Silva dated 15 November 2023. I marked this letter Exhibit A3. Ms Silva also provided oral evidence in chief and was cross-examined by Ms Gall. Ms Silva gave oral evidence under oath that she would fund Ms Tselikas’ legal expenses for an application to have the deed set aside to a court.
Ms Tselikas also provided oral closing submission at the end of the hearing.
Ms Tselikas ultimately requested a two-month adjournment and indicated she would commence court proceedings within this period, ideally with assistance from Legal Aid, but in the alternative via Ms Silva’s generous offer. The proposal was for the application to be listed for report-back in around two months so that an update could be provided to the Commission and to allow further consideration of what should happen with the application.
STATUTORY PROVISIONS
Section 368(3) deals with the issuing of a certificate by the Commission in relation to an application made under s.365 of the FW Act. The sub-section reads:
If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b)if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
Given Cuscal’s position is effectively that no further steps can be taken in relation to Ms Tselikas’s application because a binding settlement agreement has been reached, s.587 of the FW Act, which deals with the Commission’s power to dismiss applications, is also relevant to this case. Section 587 of the FW Act states:
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.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
A Full Bench of the Commission has previously determined an application under s.365 of the FW Act can be dismissed pursuant to the general power in s.587(1) on the basis that the underlying dispute has been extinguished by a settlement agreement after the application was made.[3] Alternatively, the Commission can utilise its implied power to decline to act on an application where it fails for want of jurisdiction.[4]
Section 589 of the FW Act provides the Commission with jurisdiction to make procedural and interim decisions and states:
Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC's power to make decisions.
In an appeal concerning a first instance decision to set aside directions in unfair dismissal proceedings due to the existence of related Federal Court proceedings, a Full Bench of the Commission in Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar[5] referred to the Commission’s broad discretion concerning procedural decisions in the following terms (endnotes omitted):
“It is important to bear in mind that the Commissioner at first instance was exercising a general discretion. In Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission[6] the High Court made the following observations about the nature of ‘discretion’:
‘"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.’[7] [Emphasis added]
The discretion exercised in the present case was only confined by the subject matter and objects of the FW Act and, as such, the decision maker had considerable latitude as to the decision to be made.
In such circumstances the McMahon v Gould principles may be of some assistance, by way of broad guidance, but each case must be determined having regard to its particular circumstances and to the statutory framework within which the discretion is to be exercised. The discretion was required to be exercised having regard to the Commission’s central obligation to provide a fair hearing to parties in proceedings before it. Such an obligation arises directly from s.577(a) of the FW Act, which directs the Commission to perform its functions and exercise its powers in a manner that ‘is fair and just’, and from the implied obligation to act judicially. One aspect of the duty to act judicially is the obligation to afford a party a reasonable opportunity to allow his or her case to be put.”
Given the objects of the FW Act are relevant to the making of a discretionary procedural decision, the objects prescribed in s.336 of the FW Act for the general protections part of the FW Act need to be considered. Section 336 of the FW Act prescribes the objects for Part 3-1 – General Protections and states:
The objects of this Part are as follows:
(a) to protect workplace rights;
(b) to protect freedom of association by ensuring that persons are:
(i) free to become, or not become, members of industrial associations; and
(ii) free to be represented, or not represented, by industrial associations; and
(iii) free to participate, or not participate, in lawful industrial activities;
(c) to provide protection from workplace discrimination;
(d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.
(2) The protections referred to in subsection (1) are provided to a person (whether an employee, an employer or otherwise).
It is interesting to compare the objects for the general protections part of the FW Act with the objects prescribed in s.381 for the unfair dismissal part. The objects of the unfair dismissal part of the FW Act focus upon balancing the interests of employers and employees and emphasise procedures that are “quick, flexible and informal”. In contrast, the objects for the general protections part of the FW Act in s.336 are focused solely upon the protection of rights and persons and providing effective relief.
The general requirements regarding the performance of the Commission’s functions in s.577 of the FW Act are also relevant to a discretionary procedural decision. Section 577(1) of the FW Act states:
(1) The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
CONSIDERATION
This case highlights some of the complexities associated with the Commission’s jurisdiction concerning general protections applications, including in relation to the determination of jurisdictional objections and the dismissal of applications. However, there are judgments of the Federal Court that provide assistance in resolving the issues.
Can a certificate be issued in this case?
When I raised the prospect of the issuing of a certificate during the hearing on 24 November 2023, Ms Gall submitted that I do not have jurisdiction to issue a certificate in relation to Ms Tselikas’ application because the deed of release constitutes an accord and satisfaction that currently operates to extinguish the cause of action, being the alleged dismissal in contravention of the general protection provisions.
In Australian Postal Corporation v Gorman,[8] Justice Besanko stated the following concerning the application of an accord and satisfaction in the Commission:
“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.
It seems to me that the fact of an accord and satisfaction can either be raised under the Act at an ‘interlocutory’ stage and at the final hearing or it cannot be raised at all. As it is a complete answer to a claim there would be no reason why it could be raised at a final hearing but not at a preliminary stage under a section such as s 587.
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.”
In Coles Supply Chain Pty Ltd v Milford,[9] a Full Federal Court stated the following concerning the Commission’s ability to decline to act upon an application that has not been validly made:
“Whether or not it was open to the Deputy President to dismiss the application under s 587(1)(a) of the FW Act on the basis that it had not been made “in accordance with” the FW Act, may be left to a case in which the outcome might turn on it. The better view is that it is not necessary to identify an express power in the FWC to decline to act upon an application on the basis that it fails for want of jurisdiction. It may be that an application purportedly made by a person having no entitlement to make it is not an “application” for the purposes of s 587(1)(a) at all. Section 587(1)(a) has work to do in cases where an otherwise valid application has not been made in accordance with procedural rules made under the FW Act. The statutory note suggests that is its purpose (although the note does not form a part of the Act): see s 40A of the FW Act.”
I read these authorities to mean that the deed of release is an accord and satisfaction that currently operates to extinguish Ms Tselikas’ cause of action, and as a result her application is currently “an application purportedly made by a person having no entitlement to make it”.
The Full Court determined in Coles Supply Chain Pty Ltd v Milford that the entitlement of an applicant to make an application must be determined by the Commission before the powers to conduct a conference and issue a certificate under s.368 of the FW Act can be exercised:
“To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply. It is also open to a respondent to admit that a dismissal has occurred but dispute that the dismissal took effect within 21 days of the date that the application was filed. Such a dispute may give rise to an issue under s 366(1), involving as it does a question as to whether it is necessary for the FWC to determine whether more time should be “allowed” for the application to be made under s 365. That too is an antecedent dispute, going to the question of whether an application has been made. It is a dispute that must be resolved before the powers conferred by s 368 can be exercised at all.”[10]
Based on these authorities, I accept Cuscal’s submission that I do not currently have jurisdiction to issue a certificate pursuant to s.368 of the FW Act because I am not satisfied a valid application is before me. The deed of release currently operates to extinguish Ms Tselikas’ cause of action. This means she cannot make a valid application pursuant to s.365 of the FW Act.
On a more practical level, I can see some utility in the issuing of a certificate under s.368 of the FW Act in this type of scenario. The issuing of a certificate would enable Ms Tselikas to commence court proceedings and to seek to have the deed of release set aside as part of those proceedings. However, I do not consider this approach is open given the Federal Court judgments identified above.
Should Ms Tselikas’ application be dismissed?
Given the Full Federal Court’s judgment in Coles Supply Chain Pty Ltd v Milford, and its application by a Full Bench of the Commission in Bradley William Lewer v Australian Postal Corporation,[11] I consider there is jurisdiction to dismiss Ms Tselikas’ application. This would be pursuant to the general power in s.587(1) of the FW Act, or alternatively via the implied power for the Commission to decline to act on an application that fails for want of jurisdiction.
However, an issue of timing arises in this case, given Ms Tselikas is adamant she intends to contest the validity of the deed of release. If the deed of release was set aside by a court, Ms Tselikas’ application would be valid and Cuscal’s jurisdictional objection would fall away.
Should Ms Tselikas’ application be dismissed immediately?
Cuscal accepted in its outline of oral argument that I have the power to grant an adjournment rather than immediately dismissing Ms Tselikas’ application.[12]
The main practical difference between the two courses of action is that if I dismiss Ms Tselikas’ application, if she is subsequently successful in having the deed of release set aside, she would have to make another application pursuant to s.365 of the FW Act and the application would be filed outside of the 21-day filing period in s.366 of the FW Act. As a result, Ms Tselikas would be required to seek an extension of time for the filing of the application based on exceptional circumstances taking into account the factors identified in s.366(2) of the FW Act.
While I suspect the setting aside of a deed that had previously been relied upon by the Commission to dismiss an application filed within the 21-day period would constitute an exceptional circumstance, that is not guaranteed. Ms Gall submitted the subsequent granting of an extension would need to be assessed based on all the factors at the relevant time. That is clearly correct.
At this point I return to the objects of the general protections part of the FW Act prescribed in s.336 of the FW Act. The objects are squarely directed at protecting persons, and providing effective relief. I consider an outcome whereby Ms Tselikas subsequently succeeds in having the deed set aside, but then fails to convince the Commission an extension of time should be granted under s.366(2) of the FW Act, to be contrary to the objects of the part. Ms Tselikas would lose her access to the protections in Part 3-1 of the FW Act on the basis of a deed that has been set aside. I consider this factor weighs strongly in favour of not dismissing the application at this point in time. I consider the reference in s.577(1)(b) of the FW Act to the Commission acting “quickly” must be considered with reference to the objects of Part 3-1. Further, speed is not the only priority identified in s.577(1), the Commission must also perform its powers in a manner that is “fair and just”.
I consider the prejudice that will be suffered by the parties from the respective options to be relevant to the exercise of my discretion.
If I decide to adjourn the application, I accept Cuscal will suffer some prejudice because it may be required to attend further Commission proceedings to discuss what should occur with the application. However, these proceedings are likely to be reasonably brief and are unlikely to require the preparation of further material. Cuscal may incur some legal costs if they seek permission to be represented at these proceedings. I also accept Cuscal will suffer some prejudice if the application is adjourned because it will not have the ability to oppose the granting of an extension of time to Ms Tselikas, as would be the case if the application is dismissed and she subsequently succeeds in having the deed set aside.
However, I consider the prejudice suffered by Ms Tselikas if her application is dismissed, may significantly exceed that suffered by Cuscal if the application is adjourned. Ms Tselikas will have an application filed within the 21-day period dismissed and will be left seeking an extension of time for the filing of any further application. A dismissal could conceivably be fatal to Ms Tselikas’ claim. This weighs in favour of adjourning the application.
I consider Ms Tselikas’ failure to take any significant steps to contest the deed of release since the Mention/Directions hearing on 15 September 2023 weighs against granting an adjournment. That is particularly the case given I previously granted Ms Tselikas a substantial adjournment, over opposition from Cuscal, so she could seek legal advice about her application and the deed.
Having considered all the factors in this case, I have determined to exercise my discretion under s.589 of the FW Act to delay the dismissal of Ms Tselikas’ application. I will do this to allow Ms Tselikas one final opportunity to seek advice about her prospects of having the deed of release set aside and to potentially commence proceedings. This is an approach that was previously adopted by Deputy President Gooley in Wayne Neal v Light Pass Enterprises Pty Ltd, [13] albeit the employer in that matter did not make submissions opposing a delay in the application being dismissed.
I have decided that unless I am advised by the close of business on 20 December 2023 that proceedings have been commenced in a court to have the deed set aside, I will issue a decision dismissing Ms Tselikas’ application without further reference to the parties. I will require evidence of the filing of an originating application as proof that proceedings have been commenced.
CONCLUSION
I find that I do not have jurisdiction to issue a certificate under s.368(3) of the FW Act because there is currently an accord and satisfaction which prevents Ms Tselikas making a valid application under s.365 of the FW Act.
I am satisfied I have jurisdiction to dismiss Ms Tselikas’ application pursuant to the general power in s.587(1) of the FW Act, or alternatively via the implied power for the Commission to decline to act on an application that fails for want of jurisdiction.
I have determined it is appropriate to dismiss Ms Tselikas’ application unless I am advised by the close of business on 20 December 2023 that proceedings have been commenced in a court to have the deed set aside. I will require evidence of the filing of an originating application as proof that proceedings have been commenced. In the absence of this proof, I will issue a decision dismissing Ms Tselikas’ application without further reference to the parties.
In the event that Ms Tselikas establishes that she has commenced proceedings in a court by the close of business on 20 December 2023, I will list the application for report-back in 2024.
COMMISSIONER
Appearances:
Ms Tselikas representing herself.
Ms Gall of counsel, instructed by Ms Cooper, representing Cuscal.
Hearing details:
24 November 2023 in Sydney.
[1] Exhibit R1.
[2] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591.
[3] Bradley William Lewer v Australian Postal Corporation [2023] FWCFB 56 at [55].
[4] Ibid at [57].
[5] [2018] FWCFB 1255 at [45] to [47].
[6] (2000) 174 ALR 585.
[7] Ibid at [19].
[8] Australian Postal Corporation v Gorman (2011) 196 FCR 126 at [31] to [33].
[9] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591 at [69].
[10] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591 at [67].
[11] [2023] FWCFB 56.
[12] Respondent’s Outline of Oral Argument at [2].
[13] [2015] FWC 2930 at [37] and [38].
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