Byron Saunders v Tasmanian Country Club-Casino Proprietary Limited T/A Tasmanian Country Club Resort & Tasmanian County Club Villas

[2015] FWC 7377

[2015] FWC 7377

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Byron Saunders
v
Tasmanian Country Club-Casino Proprietary Limited T/A Tasmanian Country Club Resort & Tasmanian County Club Villas
(U2015/11146)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Mr Byron Saunders lodged an application for an unfair dismissal remedy on 20 August 2015. The application was referred to conciliation on 17 September 2015 where a settlement was reached. The parties waived the cooling off period and the file was closed.

[2] On 18 September 2015, Mr Saunders contacted the Fair Work Commission and advised that he had read the terms of settlement and did not agree with item 2 of the terms of settlement namely that “the Respondent denies the allegations.” He asked for the terms to be renegotiated.

[3] On 18 September 2015, I caused an email to be sent to the parties. In that email I advised the parties that I was considering whether I should dismiss Mr Saunders’ application under s.587 of the Fair Work Act 2009 because it had no reasonable prospects of success. I referred them to the decision of the Full Bench in Curtis v Darwin City Council 1 which referred to the decision of the Federal Court in Australian Postal Corporation v Gorman2 which is an authority for the proposition that if there is a binding agreement between parties to an unfair dismissal application then the application has no reasonable prospects of success and may be dismissed.

[4] I provided the parties with an opportunity to file material in relation to my proposal that I should dismiss Mr Saunders’ application.

[5] In Australia Postal Corporation v Gorman³, Besanko J said as follows:

“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.”⁴

[6] His Honour went on to say:

“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.”⁵

[7] At the hearing of the matter the Tasmanian Country Club-Casino Proprietary Limited T/A Tasmanian Country Club Resort & Tasmanian County Club Villas relied upon the agreement reached at the conciliation. It had agreed to carve out of the release Mr Saunders’ claim that he was underpaid. It advised that whilst it had not paid the monies payable under the terms of settlement because Mr Saunders was disputing the agreement, it was willing to make the payment.

[8] Mr Saunders submitted that he would not have made the agreement if he had known that the Club was denying liability for what occurred.

[9] In effect Mr Saunders submits that the written document does not reflect what was agreed at the conciliation.

[10] Both Mr Saunders and the Club filed material relevant to the merits of the unfair dismissal application. Those matters are not relevant to my considerations.

[11] What both parties agreed to was that there was a settlement reached at conciliation. It is not disputed that the settlement required the Club to pay Mr Saunders an amount of $4,134.78 less tax in addition to any other monies paid by the Club. The Club agreed to provide Mr Saunders with a statement of service. Mr Mark Whitnell was to be the contact point for any inquiries and his comments would be limited to the content of the statement of service and he was to advise all callers that the Club did not give references. Mr Saunders agreed to release the Club from all claims except those claims related to wages and entitlements and for any work related injury or under superannuation legislation. The parties agreed not to disparage each other. The Club did not suggest that there was any express agreement to the term objected to by Mr Saunders.

[12] However that that term was included in the draft agreement provided by the Commission does not mean that Mr Saunders and the Club did not reach an agreement to settle Mr Saunders’ claim.

[13] I am satisfied that the parties did reach a verbal agreement to settle the claim. I am satisfied that both parties are bound by that agreement.

[14] At this time the Club has not complied with its obligations because of the dispute about the binding nature of the agreement.

[15] If the Club provides evidence that it has complied with the terms of settlement reached in conciliation within seven days of this decision, I will exercise my discretion to dismiss Mr Saunders’ application as it has no reasonable prospects of success.

DEPUTY PRESIDENT

Appearances:

B. Saunders on his own behalf.

M. Cornell for the Respondent.

Hearing details:

2015.

Melbourne and Hobart, by telephone link:

October 26.

 1   [2012] FWAFB 8021

 2 [2011] FCA 975

3 Ibid

4 Ibid at [31]

5 Ibid at [33]

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