Ashok Kumar Duraisamy v Sydney Trains

[2017] FWC 4824

[2017] FWC 4824

FAIR WORK COMMISSION

DECISION

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

Ashok Kumar Duraisamy
v
Sydney Trains
(U2017/8480)

VICE PRESIDENT HATCHER SYDNEY, 22 SEPTEMBER 2017

Application for an unfair dismissal remedy.

Introduction and background

[1] Mr Ashok Duraisamy has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (FW Act) for a remedy for what he alleges to have been an unfair dismissal by his former employer, Sydney Trains. Mr Duraisamy’s application for an unfair dismissal remedy was lodged on 4 August 2017 and in it he claimed that he was notified of his dismissal on 13 June 2017, with the dismissal taking effect on 18 July 2017. He was dismissed for breaches of Sydney Trains’ Code of Conduct and attendance recording procedures.

[2] Sydney Trains initially contended that the application ought be dismissed without a hearing on the merits for the following reasons:

1. On 15 June 2017 Mr Duraisamy signed a deed of release which provided a release and discharge by Mr Duraisamy in favour of Sydney Trains relating to his employment and the termination of his employment. Sydney Trains relies on the deed to contend that Mr Duraisamy’s claim for unfair dismissal has no prospects of success.

2. Mr Duraisamy was not dismissed in that, by letter dated 15 June 2017, he resigned from his employment effective from 13 June 2017.

3. Even if Mr Duraisamy was dismissed, his unfair dismissal application is out of time because the dismissal took effect on 13 June 2017 and Mr Duraisamy did not lodge his application until 4 August 2017, some 52 days after the date of dismissal.

[3] These jurisdictional objections were the subject of a hearing before me on 21 September 2017 and are the subject of this decision. At the hearing Sydney Trains abandoned the third objection, so it is only necessary to consider the first two.

[4] The factual background to this matter is as follows. Mr Duraisamy’s employment (with a predecessor entity of Sydney Trains) commenced on 1 September 2003. During the course of 2016 and 2017, he was the subject of a disciplinary process concerning allegations of misconduct made against him. Mr Duraisamy commenced various legal proceedings against Sydney Trains, including an application pursuant to s.789FC of the FW Act for an order to stop bullying, a complaint with the NSW Anti-Discrimination Board and an application pursuant to s.739 of the FW Act for this Commission to deal with a dispute in accordance with the dispute settlement procedure in an enterprise agreement.

[5] The disciplinary process against Mr Duraisamy culminated in him being sent a letter by Sydney Trains dated 13 June 2017 which informed him that he had been found to have breached the Code of Conduct in various respects, and that the appropriate disciplinary outcome had been determined to be dismissal. He was notified that, unless he filed an application for review of the disciplinary decision within ten days, his employment would be terminated effective from 18 July 2017. It is not in dispute that Mr Duraisamy did not file any application for review within the ten days or at all.

[6] On 15 June 2017 Mr Duraisamy entered into an “Employment Deed of Release” with Sydney Trains (Deed). The “Background” provisions of the Deed noted that “On 13 June 2017, the Employment was terminated (Dismissal)”, but this is not factually consistent with the terms of the 13 June 2017 dismissal letter. The Deed otherwise relevantly provided as follows:

● Sydney Trains was, within 28 days of receipt of the Deed executed by Mr Duraisamy, to pay him a specified monetary amount as an eligible termination payment (cl.2.1);

● Sydney Trains would, within 7 days of execution of the Deed, provide Mr Duraisamy with a statement of service which, among other things, noted the reason for the cessation of his employment as resignation (cl.2.2);

● Sydney Trains would make a payment to Mr Duraisamy in relation to accrued untaken annual leave and long service leave, and the parties otherwise acknowledged that his pay and leave entitlements had been taken during the employment or paid by Sydney Trains (cl.2.5);

● Mr Duraisamy released and forever discharged Sydney Trains for all claims “by reason of or arising out of or in any way related directly or indirectly” to, among other things, his employment with Sydney Trains and the “Dismissal” (cl.3.1);

● the Deed could be pleaded as a bar to any claims commenced by Mr Duraisamy concerning or arising out of the employment and the “Dismissal” (cl.3.2);

● Mr Duraisamy would, within 7 days, discontinue the legal proceedings earlier referred to (cl.4);

● Mr Duraisamy indemnified Sydney Trains against all claims which he had or might otherwise have had against Sydney Trains relating to the employment and the “Dismissal” (cl.5.1);

● the parties acknowledged that they entered into the Deed fully and voluntarily upon their own information and investigations (cl.7); and

● Mr Duraisamy warranted that prior to entering into the Deed he had read it and taken independent legal advice about it (cl.8).

[7] The same day as he executed the Deed, Mr Duraisamy signed a resignation letter addressed to Sydney Trains which stated:

“Resignation Letter

I, Ashok Kumar Duraisamy, hereby resign from my employment with Sydney Trains effective on 13 June 2017.”

[8] The Deed did not in terms require Mr Duraisamy to resign in this way, but his resignation seems to have been regarded as part of the overall settlement arrangement.

[9] Mr Duraisamy was legally represented in relation to the negotiation and execution of the Deed and received legal advice concerning its meaning and effect prior to executing it. The resignation letter was also provided to him by his lawyers and signed by him in their presence.

[10] Under the Deed Sydney Trains was required to pay the settlement sum by 13 July 2017. It did not strictly comply with this requirement. The sum was not paid until 18 July 2017, although there appears to have been liaison with Mr Duraisamy’s lawyers concerning the delay. On the same day, Mr Duraisamy attended Sydney Trains’ premises to return its property.

[11] The day after he received the settlement sum and returned Sydney Trains’ property (19 July 2017), Mr Duraisamy sent a letter to Sydney Trains’ lawyers purporting to revoke the Deed.

[12] As earlier stated, Mr Duraisamy lodged his unfair dismissal remedy application on 4 August 2017. The statement of service, which was required to be provided by 22 June 2017, was not actually provided until 8 August 2017.

[13] In relation to these events, Mr Duraisamy gave the following evidence and made the following submissions:

● the Deed was part of a “vicious ploy” to avoid the proceedings before the Commission and the Anti-Discrimination Board;

● he had been “blackmailed” into signing the Deed by Sydney Trains giving him a “bad listing” as an employee and withholding his entitlements, and he had “no option but to sign the Deed”;

● he was under “extreme duress” when he signed the resignation letter;

● he did not make an application for review of the dismissal decision because “the union” told him not to and that it would be pointless;

● Sydney Trains had not paid him wages for an earlier 21-day period while he was under a “fabricated” investigation, and this constituted a failure to pay entitlements in accordance with cl.2.5 of the Deed; and

● the failure of Sydney Trains to comply with the Deed, including the non-payment of wages for the 21-day period and the failure to pay the settlement sum and provide the statement of service within the specified period, entitled him to revoke the Deed, and he was therefore no longer bound by the release it contained.

Consideration

[14] Under s.587(1)(c) of the FW Act, the Commission may dismiss an application before it if it has no reasonable prospects of success. I do not consider that Mr Duraisamy’s application has any reasonable prospects of success, for two reasons.

[15] The first is that Mr Duraisamy’s employment terminated because he resigned, not because he was dismissed. On 13 June 2017, Mr Duraisamy was given notice by Sydney Trains that his employment would terminate on 18 July 2017. However two days later, before the dismissal took effect, Mr Duraisamy resigned his employment. The resignation purported to take effect retrospectively, but whether this could be legally effective or not, there is no basis to consider that the employment continued any time after 15 June 2017.

[16] A dismissal is defined in s.386(1) as follows:

(1)  A person has been dismissed if:

(a)  the person's employment with his or her employer has been terminated on the employer's initiative; or

(b)  the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[17] I do not consider that anything in Mr Duraisamy’s evidence establishes that his resignation was legally vitiated because of duress or that he was forced to resign because of conduct on the part of Sydney Trains. There was no reason for Sydney Trains to compel Mr Duraisamy’s resignation because it had already given him notice of his dismissal. It is clear that Mr Duraisamy resigned as part of a settlement agreement with Sydney Trains, and the resignation allowed him to access the benefits of the settlement. The generalised assertions of blackmail, duress and coercion which Mr Duraisamy made in the course of giving evidence have no probative value and cannot be assigned any weight. It was entirely legitimate for Sydney Trains to reach an agreement to settle all legal proceedings with Mr Duraisamy. From its perspective, the termination of those proceedings was the whole point of the settlement. The proposition that Mr Duraisamy had to resign and sign the Deed because Sydney Trains was denying him his entitlements never rose beyond the level of assertion. In clause 2.5 of the Deed, apart from the payment of outstanding leave entitlements, Mr Duraisamy acknowledged that he had been paid all his employment entitlements. His resignation, and his execution of the Deed containing this acknowledgement, were undertaken with the benefit of legal advice.

[18] Secondly, the effect of the Deed, with its release and indemnity in relation to claims associated with Mr Duraisamy’s employment and its termination, operates as a complete answer to Mr Duraisamy’s unfair dismissal application. In Australian Postal Corporation v Gorman 1, the Federal Court (Besanko J) said:

“[31] 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.

[32] 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.

[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.”

[19] Mr Duraisamy, as earlier stated, contends that he validly revoked the Deed and that it is no longer effective. There is authority for the proposition that a deed of release containing mutual obligations as between the parties may, like an ordinary contract, be terminated by one party where the other party repudiates its obligations and that repudiation is accepted. 2 However, I do not consider that there is evidence of repudiatory conduct on the part of Sydney Trains. The settlement payment was made some days late, but as earlier stated there was liaison with Mr Duraisamy’s lawyers about this. There is nothing in the Deed which suggests that time was of the essence in relation to the making of the settlement payment or that performance of the other obligations in the Deed was conditional upon receipt of the payment at the specified time, and I note that Mr Duraisamy did not purport to revoke the Deed until after he had received the payment. In respect of the statement of service, again the Deed does not indicate that time was of the essence, and Mr Duraisamy did not seek to terminate the Deed immediately after 22 June 2017 when it was meant to have been provided. As for the claimed wages for the 21-day period, there was no requirement in the Deed for Sydney Trains to pay this to Mr Duraisamy; to the contrary, he expressly acknowledged that apart from outstanding leave entitlements, all other entitlements (including wages) had been paid.

[20] Accordingly Mr Duraisamy’s application is dismissed.

VICE PRESIDENT

Appearances:

A Duraisamy on his own behalf.

A Sharp with E Ball on behalf of Sydney Trains.

Hearing details:

2017.

Sydney:

21 September.

 1 [2011] FCA 975, 196 FCR 126

 2   See Seven Network (Operations) Limited v Amber Harrison [2017] NSWSC 129 at [37]-[42]

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