Barry Morse v Luxottica T/A OPSM
[2019] FWC 3029
•3 MAY 2019
| [2019] FWC 3029 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Barry Morse
v
Luxottica T/A OPSM
(U2018/13627)
DEPUTY PRESIDENT DEAN | SYDNEY, 3 MAY 2019 |
Application to re-open unfair dismissal application - whether application settled.
[1] On 31 December 2018, Mr Barry Morse made an application under s.394 of the Fair Work Act 2009 for a remedy in respect of his alleged unfair dismissal by Luxottica T/A OPSM.
[2] The application was conciliated on 8 February 2019 by a Fair Work Conciliator and the Commission’s records show that the parties reached a settlement agreement. Later the same day the Conciliator wrote to the parties confirming the settlement. The parties were provided with a copy of the written terms of settlement and were advised they had a 3 day cooling off period to consider whether the document reflected the agreed settlement.
[3] On 12 February 2019 Mr Morse wrote to the Conciliator in the following terms:
“The agreement letter states that the gross amount will be taxed and that is not what we agreed upon. Can you amend the wording in the payment paragraph.”
[4] and the Conciliator replied:
“The wording in the agreement is correct. The payment is a redundancy payment and it will be taxed accordingly.
With redundancy payments there is a tax free amount and after the threshold is reached the remaining amount (if you are over) is taxed accordingly to law. It depends on individual circumstances. You should speak to your accountant or the Australian Taxation Office.”
[5] Later on the same day Mr Morse sent the signed terms of settlement to the Conciliator.
[6] At the end of the cooling period on 13 February 2019 the Conciliator recorded the conclusion of the matter and the file was closed.
[7] On 17 February 2019, email exchanges between the parties confirmed that that Mr Morse had received a payment but challenged the tax deduction from the payment.
[8] On 19 February 2019 Mr Morse wrote to the Commission requesting the matter be re-opened.
[9] This decision deals with Mr Morse’s request to reopen his unfair dismissal application.
[10] On 20 March 2019 I caused correspondence to be sent to Mr Morse explaining that the Commission did not have jurisdiction to further deal with an application that had been settled, and requested that he provide an explanation as to why he thought his application could proceed.
[11] In his response, while Mr Morse acknowledged that a settlement had been reached, he asserted that the tax treatment of the payment was in breach of the terms of settlement. He said that “All I ask is for the settlement to be adhered to as was negotiated and agreed upon”.
Consideration
[12] It is clear that the parties reached a settlement following the conciliation conference. The terms of settlement were recorded in writing and were signed by both sides. The parties exchanged signed terms of settlement on 14 February 2019.
[13] There is no suggestion that Mr Morse was subject to any duress in accepting the settlement offer. Indeed, given that he was unrepresented at the conciliation conference, Mr Morse was provided a 3 day cooling off period within which he could have withdrawn from the settlement agreement.
[14] While Mr Morse did query the taxation of the payment, he was provided with a response to his query and after receiving that response, he signed and returned the settlement agreement to the Conciliator and the respondent.
[15] In Australia Postal Corporation v Gorman1, Besanko J held that “a valid accord 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.”2
[16] Simply put, if there is a binding agreement between the parties to an unfair dismissal application, the application has no reasonable prospects of success and may be dismissed.
[17] Section 587(1) of the Act empowers the Commission to dismiss an application in certain circumstances:
“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.”
[18] I am satisfied on the material before me that a binding settlement agreement was reached between the parties on 8 February 2019 and that the settlement is a complete answer to Mr Morse’s application. Mr Morse’s claim has no reasonable prospects of success and I therefore dismiss his application pursuant to s.587(1)(c) of the Act.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR707924>
1 [2011] FCA 975.
2 Ibid at [33].
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