Brooke Hartley v Catholic Schools Broken Bay

[2024] FWC 3534

[2024] FWC 3534

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brooke Hartley
v

Catholic Schools Broken Bay

(U2024/11851)

COMMISSIONER MCKINNON SYDNEY, 20 DECEMBER 2024

Application for an unfair dismissal remedy – jurisdictional objection – execution of deed of release – deed of release bars claims under the Fair Work Act 2009 (Cth) – Fair Work Act 2009 (Cth) s.587 – application dismissed

1. On 4 October 2024, Ms Brooke Hartley applied under s.394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy against her former employer, Catholic Schools Broken Bay (CSBB). CSBB objects to the application on two grounds: firstly, that the dismissal was a case of genuine redundancy[1] and secondly, that Ms Hartley “entered into a deed of release with [CSBB] in relation to the Employment and the termination of the Employment”.

1. The decision deals with whether the deed of release (Deed) has the effect that the application has no reasonable prospects of success.[2] I find that the Deed is a complete answer to the unfair dismissal application. The application has no reasonable prospects of success and will be dismissed. These are my reasons.

Consideration

1. On 13 September 2024, Ms Hartley and CSSB entered into the Deed which resolves all matters between them. The Deed included the following:

“4. RELEASES AND INDEMNITY

4.1 Release and indemnity by the Employee
Subject to the terms of this document, the Employee releases, discharges and indemnifies the Employer and any other member of the Group from all Claims which the Employee has or which, but for this document, the Employee could, would or might have or have had against the Employer Or any Other member of the Group arising out of, either directly or indirectly, the Employment, the Contract, the Enterprise Agreement, the Act, the Resignation, or any other matter set out in the Background to this Deed.”

1. "Claims" is defined in the Deed to mean “all claims, demands, entitlements, suits, investigations, causes of action, damages, debts, costs, verdicts and judgments whatsoever whether at law or in equity or under any statute (except workers' compensation and superannuation legislation).”

1. In similar circumstances in Duraisamy v Sydney Trains, the Commission held:[3]

   ‘... 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, 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.”

1. Ms Hartley submits that she was coerced into signing the Deed, but the submission is not established. If there is evidence of same and Ms Hartley seeks to have the Deed set aside, the proper course is to apply for relief in a court of competent jurisdiction.

Conclusion

1. Section 587(1)(c) of the Act allows the Commission to dismiss an application before it that has no reasonable prospects of success. I am satisfied that the Deed constitutes a ‘valid and effective accord and satisfaction’ and for this reason is a complete answer to Ms Hartley’s unfair dismissal application. The application has no reasonable prospects of success.

1. The application is dismissed.

COMMISSIONER

Hearing details:

Determined on the papers.

<PR782597>

[1] Fair Work Act 2009 (Cth), s.729(1)(b)(iii).

[2] Act, s.587(1)(c).

[3] Duraisamy v Sydney Trains[2017] FWC 4824, cited in Amio v Alstom Transport Pty Ltd [2018] FWC 220.

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