Brian Devcich v Linfox Armaguard Pty Ltd

[2013] FWC 2639

[2013] FWC 2639

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brian Devcich
v
Linfox Armaguard Pty Ltd
(U2012/16299)

COMMISSIONER JONES MELBOURNE, 30 APRIL 2013

Matter settled - Application dismissed pursuant to s.587 of the Act on own motion.

[1] On 4 December 2012, Mr Brian Devcich (the Applicant) made an application for unfair dismissal remedy in relation to his dismissal under s.394 of the Fair Work Act 2009 (the Act). Attached to the application was a ‘Deed Poll’ dated 21 November 2012 (the Deed).

[2] On 12 December 2012, Linfox Armaguard Pty Ltd (the Respondent) filed their response to the application for unfair dismissal remedy (Form F3).

[3] The Deed, is in its context and form, a document generally known as a Deed of Settlement between the Applicant and the Respondent. Under the Deed, in consideration of the Respondent allowing the Applicant to resign, the Applicant releases the Respondent from any claims in relation to the Applicant’s employment, termination and events leading to the termination. The Deed warrants, amongst other things, that the Applicant “has obtained independent legal advice about the terms and effect of this Deed.” There is a signature, purportedly of the Applicant, and a signature of a witness.

[4] On 21 January 2013, correspondence was sent to the Applicant asking him to advise whether he disputes that he reached a binding agreement with the Respondent and on what basis he disputed this.

[5] The file notes disclose that on 4 April 2013, a member of the Unfair Dismissal Case Management Team of the Fair Work Commission spoke to the Applicant by telephone regarding the Deed. It is recorded that the Applicant advised he was negotiating with the Respondent.

[6] To date no further communication has been received from the Applicant.

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

[8] Section 587 of the Act provides:

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.

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 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.

[9] I am satisfied that, in determining whether to dismiss a matter on its own initiative, the Commission is not limited to matters specified in s.587(1)(a) to (c). The opening words ‘without limiting when FWC may dismiss a matter’, clearly confers a broader discretion.

[10] 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

[11] 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

[12] I am satisfied that in the circumstances where there is a binding agreement between the parties, I should exercise my power under s.587 of the Act to dismiss the Applicant’s application. An order to this effect will be issued.

COMMISSIONER

 1 [2011] FCA 975

 2   Ibid at [31]

 3   Ibid at [33]

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