Benjamin Rocke v Sydney Water Corporation

[2019] FWC 2457

[2019] FWC 2457

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
ss.394, 400A—Unfair dismissal

Benjamin Rocke
v
Sydney Water Corporation
(U2018/11416)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 10 APRIL 2019

Application for unfair dismissal remedy – application withdrawn – applicant’s costs application filed 14 March 2019 – costs application dismissed.

[1] On 6 November 2018, Mr Benjamin Rocke (the applicant) applied to the Fair Work Commission under Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy in relation to his employment by Sydney Water Corporation (the respondent), which ended on 2 November 2018.

[2] On 3 December 2018, I issued directions to the parties to file submissions and evidence in relation to the application.

[3] On 11 February 2019, the parties advised my chambers that they had executed a deed of settlement (the Deed) in relation to this matter.

[4] On 14 March 2019, the applicant filed a notice of discontinuance in relation to his application for an unfair dismissal remedy. He also filed an application for costs against the respondent.

[5] On 15 March 2019, I issued directions for the filing of submissions and evidence in relation to the costs application.

[6] The respondent attached to its submissions on the costs application a copy of the Deed, signed by its Manager, Industrial Relations and the applicant. Clauses 2 and 3 of the Deed relevantly provide:

‘2 Release

(a) The employee releases and discharges the Company and the Associated Beneficiaries from all Claims which the Employee has or which, but for this deed, the Employee could or would have had against the Company or an Associated beneficiary in respect of or arising out of, either directly or indirectly:

(i) the Employment;

(ii) the terms and conditions of the Employment;

(iii) the Proceedings U2018/11416.

(b) The Employee will upon execution of this Deed withdraw all complaints made by him to the Fair Work Ombudsman and from that time onwards will not take any further steps to pursue any such complaints unless legally compelled to do so.

…

(d) In this deed:

…

(ii) Claims means all claims, complaints (including to a regulatory authority such as the Fair Work Ombudsman), demands, suits, causes of action, damages, debts, costs, verdicts and judgments whatsoever whether at law or in equity or under any statute, with the exception of claims arising under applicable workers compensation or superannuation legislation.

…

3 Bar to proceedings

The Company or any Associated Beneficiary may plead this deed as an absolute bar in any court of law, arbitral tribunal or otherwise in response to any proceedings or Claims whatsoever brought by the Employee arising out of, touching on or concerning the matters referred to or contained in this deed other than proceedings to enforce the deed.’

[7] I find that the applicant is precluded from applying for a costs order because he has signed the Deed. The terms of the Deed clearly state this. By signing the Deed, the applicant has released and discharged the respondent from ‘all Claims’, and ‘Claims’ is defined in cl 2(d)(ii) to include costs. The respondent has relied on the Deed as a bar to the applicant’s costs application, as cl 3 of the Deed clearly enables it to do.

[8] Accordingly, I find the applicant’s costs application has no reasonable prospects of success, and dismiss it pursuant to s.587(1)(c) of the FW Act.

SENIOR DEPUTY PRESIDENT

Written submissions:

Sydney Water Corporation: 26 March 2019.

Benjamin Rocke: 5 April 2019.

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