Brett Cooper v AGA Assistance Australia Pty Ltd T/A Allianz Global Assistance Roadside

[2015] FWC 6647

[2015] FWC 6647

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Cooper
v
AGA Assistance Australia Pty Ltd T/A Allianz Global Assistance Roadside
(U2013/3430)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] On 18 October 2013, Mr Brett Cooper made an application for unfair dismissal remedy in relation to his dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] On 31 January 2014, an extension of time hearing took place where I ordered that Mr Cooper be allowed until 18 October 2013 to file his application for relief from unfair dismissal.

[3] The matter was then listed for arbitration conference/hearing on 8 and 9 April 2014.

[4] On 10 March 2014, Mr Cooper advised that a settlement had been reached and paperwork would be finalised the following day. Mr Cooper asked what documentation the Fair Work Commission requires to formally finalise the matter.

[5] On 8 April 2014, Mr Cooper requested that the hearing dates be vacated but that the matter remain open. A cancellation notification was sent to parties that day.

[6] On 13 May 2014, an email was sent to Mr Cooper attaching a blank Notice of Discontinuance. On 26 June 2014, a voicemail was left for Mr Cooper to follow up the status of the matter.

[7] On 14 October 2014, Mr Cooper wrote to the Commission advising that a deed of release had been signed (the Deed). Mr Cooper sought advice on what he could do in the event AGA Assistance Australia Pty Ltd did not comply with the terms of the Deed.

[8] Attempts were made to contact Mr Cooper via telephone on 5 December 2014, 6 February 2015, 26 May and 28 May.

[9] On 28 May 2015, an email was sent to Mr Cooper to which he responded on the same day that he was still waiting for AGA to comply with the terms of settlement.

[10] On 29 July 2015, Mr Cooper confirmed to a Commission staff member that both he and AGA had signed the Deed. He advised that he hoped to have some resolution with AGA by the end of that week.

[11] On 6 August 2015, Mr Cooper wrote to the Commission and advised he was still pursuing options at that time.

[12] On 25 August 2015, Mr Cooper was sent correspondence via email and post advising that the Acting Panel Head, Termination of Employment, was considering dismissing Mr Cooper’s application on the basis it has no reasonable prospects of success. Mr Cooper was directed to file material by close of business on 2 September 2015 submissions and evidence as to why his application should not be dismissed because it has no reasonable prospects of success.

[13] On 9 September 2015, Mr Cooper advised the Commission that he would like his matter to be listed for hearing.

[14] On 10 September 2015, AGA was asked to provide the Commission with a copy of the Deed.

[15] On 14 September 2015, AGA filed in the Commission and served on Mr Cooper a copy of the Deed which had been executed by Mr Cooper and AGA.

[16] On 14 September 2015, further correspondence was sent to Mr Cooper directing him to file material by close of business on 22 September 2015 submissions and evidence as to why his application should not be dismissed because it has no reasonable prospects of success.

[17] On 23 September 2015, AGA advised that it had complied with its obligations under the Deed.

[18] On 23 September 2015, Mr Cooper wrote to the Commission advising that AGA were withholding information from him so he was unable to prove his case. Mr Cooper advised it had not been easy dealing with AGA and that it may not be worth it.

[19] Having regard to the material before me, I find that there is, in existence, a binding agreement to settle Mr Cooper’s application.

[20] Section 587(1) of the Act provides as follows:

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.

[21] In Australia Postal Corporation v Gorman 1 Besanko J held that the existence of a binding settlement or “accord and satisfaction” extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement.2

[22] His Honour stated:

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. 3

[23] I am satisfied that in the circumstances where there is a binding agreement between the parties, I should exercise my power under section 587(1)(c) of the Act to dismiss Mr Cooper’s application. An order to this effect will be issued.

DEPUTY PRESIDENT

 1 [2011] FCA 975.

 2 Ibid at [31].

 3 Ibid at [33].

Printed by authority of the Commonwealth Government Printer

<Price code A, PR572312>