Caren Loxton v Automatic Data Processing Limited T/A ADP Employer Services

[2020] FWC 2341

[2020] FWC 2341

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Caren Loxton
v
Automatic Data Processing Limited T/A ADP Employer Services
(U2019/7751)

COMMISSIONER BISSETT MELBOURNE, 19 MAY 2020

Application for an unfair dismissal remedy – binding settlement agreement reached – no reasonable prospects of success – application dismissed.

[1] On 15 July 2019 Ms Caren Loxton made an application to the Fair Work Commission seeking relief from unfair dismissal in relation to her employment with Automatic Data Processing Limited T/A ADP Employer Services (ADP). The application was subject to conciliation before a staff conciliator at the Commission on 5 September 2019 where the matter settled.

[2] The agreement to settle the application was subject to “Terms of Settlement” (ToS) signed by both Ms Loxton and a representative of ADP on that day. The ToS provided that, on the payment of a specified amount into Ms Loxton’s bank account Ms Loxton “releases and forever discharges” ADP from any claims in relation to her employment.

[3] The ToS also contained a number of standard terms, including confidentiality and non-disparagements requirements of both Ms Loxton and ADP.

[4] On 10 March 2020 Ms Loxton wrote the Commission and requested that her application for unfair dismissal be re-opened. She said that the settlement was based on lies and that she had been advised by her previous manager on Friday 6 March 2020 that she had been dismissed because she drank alcohol at work.

[5] On 1 April 2020 the Commission sent correspondence to Ms Loxton and to ADP which said:

…The Commissioner understands that Ms Loxton wishes to have her unfair dismissal application heard and determined. Our records show that this matter was settled at a conciliation conducted by the Commission on Thursday, 5 September 2019 and correspondence to that effect was provided to the parties on Thursday, 5 September 2019.

In light of this, the Commissioner is considering whether she should, of her own motion, dismiss Ms Loxton’s application under s.587 of the Fair Work Act 2009 because it has no reasonable prospects of success.

The Commissioner is considering this course of action having regard to the decision of the Full Bench of Fair Work Australia in Curtis v Darwin City Council [2012] FWAFB 8021. In that case, the Full Bench referred to the decision of the Federal Court in Australian Postal Corporation v Gorman [2001] FCA 975 [sic], which is 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.

[6] Ms Loxton and ADP were each given the opportunity to file submissions as to whether there was a binding settlement agreement or if this was a disputed matter.

[7] On 21 April 2020 Ms Loxton sent an email to the Commission and ADP in which she said:

…The reason I have pursued this further is because of the incredibly false and hurtful revelations recently by my ex manager James Brooks that I was terminated due to suspicions of alcohol consumption during work hours. This is so unimaginably untrue and defamatory.

[8] Ms Loxton did not, in that correspondence, suggest that she had not reached an agreement with ADP to settle her unfair dismissal application.

[9] On 8 May 2020 Ms Loxton sent further correspondence to the Commission in which she said:

…Had I been aware of the reasoning surrounding my termination at the time of conciliation, I would not, under any circumstances, have accepted the terms of the settlement agreement and would have requested a hearing at that time. As I have advised, on numerous occasions by email, these reasonings were clearly advised earlier this year by my former manager which greatly upset and devastated me. This manager also advised he would never give me a reference. This has directly affected my job prospects since and will impact into the future, and I remain unemployed.

[10] In addition to the emails mentioned above, Ms Loxton also sent emails to the Commission on 10 April 2020, two emails on 21 April 2020, 24 April 2020, two emails on 6 May 2020 and a further email on 8 May 2020. They were generally in accordance with those detailed above.

[11] On 22 April 2020 ADP sent correspondence to the Commission as follows:

We are writing in response to the application for Unfair Dismissal Remedy (U2019/7751) received on 1 April 2020 for Loxton, Caren v ADP Employer Services.

ADP Employer Services requests that this matter be dismissed.

ADP denied all allegations made in the conciliation yet agreed to fully and finally settle the matter based on the provisions included in the settlement agreement. ADP continues to refute the allegations.

Following the conciliation settlement as conducted by the Commission on 5 September 2019, an agreed settlement was reached and signed between both parties and the settlement figure subsequently paid to Caren Loxton.

Please find attached copy of the binding settlement agreement signed by both parties.

[12] On 8 May 2020 ADP sent further correspondence in relation to the application which said:

Further to previous correspondence, regarding the application for Unfair Dismissal Remedy (U2019/7751) for Loxton, Caren v ADP Employer Services, ADP Employer Services confirms the request for this matter be dismissed.

ADP denied all allegations made in the conciliation yet agreed to fully and finally settle the matter based on the provisions included in the settlement agreement.

ADP continues to refute the allegations raised in the conciliation meeting and the allegations raised recently; and confirms this was a genuine redundancy.

…

Following the conciliation settlement as conducted by the Commission on 5 September 2019, an agreed settlement was reached and signed between both parties and the settlement figure subsequently paid to Caren Loxton (copy previously provided to Commissioner).

[13] Ms Loxton indicated that she did not wish the Commission to determine whether her application should be dismissed on the papers but wished to be heard prior to a decision being made. That hearing proceeded on 18 May 2020 by telephone. In the notice of listing the parties were advised that the only matter the Commission would consider would be if a settlement agreement had been reached.

[14] Ms Loxton’s submissions at the hearing were not dissimilar to those put in writing. Ms Loxton refutes that there was a binding settlement agreement as she says that she would never had signed the ToS had she been aware of what she says Mr Brooks said in March 2020 as the real reason for her dismissal. Ms Loxton agreed that she had signed the ToS and that the amount specified in the ToS had been paid by ADP.

[15] ADP made submissions that Ms Loxton’s dismissal was a genuine redundancy, that it had reached an agreement with Ms Loxton with no admission of liability on its part and that it had complied with the ToS. The representative for ADP said that Mr Brooks denied making the comments to Ms Loxton on which Ms Loxton now relies.

[16] At the hearing I advised the parties that the only matter I would decide was if there was a binding settlement agreement between them. As to statements of what Mr Brooks may or may not have said I advised the parties that I could not make a decision on what each claimed Mr Brooks said 6 months after the ToS were signed by the parties.

Consideration

[17] In Australian Postal Corporation v Gorman and Another 1 Justice Besanko said that:

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 s.587 are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid 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, vexatious or without reasonable prospects of success. 2 

[18] In this case the Terms of Settlement signed by Ms Loxton and ADP provide a complete answer to the claim of Ms Loxton for unfair dismissal. Her claim, in that regard, is extinguished. In the ToS Ms Loxton agreed that those terms, once completed (ie payment made) settled her claim against ADP and she released ADP from any further claims. Ms Loxton does not dispute that she signed the ToS and that ADP fulfilled its requirements under those terms such that the release she provided to ADP was activated.

[19] Ms Loxton’s complaint is about matters that occurred 6 months after she settled her unfair dismissal claim. She says that, on the basis of those “facts”, she would not have signed the Terms of Settlement.

[20] As outlined above however, Ms Loxton’s claim for unfair dismissal has been extinguished by the agreement she entered into. To the extent that Ms Loxton said she would not have entered into the ToS had she known then what Mr Brooks had said to her (assuming Mr Brooks was correct) that is not enough, on its own, to set aside the ToS.

[21] To set aside ToS Ms Loxton would be required to show that there had been fraud, abuse of relation of confidence, undue influence, duress or coercion at play when she signed the ToS. 3 That there was some pressure on Ms Loxton to sign the ToS or that she may not have known what was in the mind of Mr Brooks is not, of itself, enough to indicate the ToS was illegitimately made. But, in any event, Ms Loxton does not complain that she was under duress or coerced into signing the ToS. Her complaint is that 6 months later Mr Brooks said something to her to which she took exception.

[22] There is no evidence before the Commission as to whether Mr Brooks said what Ms Loxton claims and whether those statements, if made, are true. To the extent Ms Loxton says they make the ToS “null and void” she provided no basis on which I could draw that conclusion. In any event, to the extent she may claim the ToS null and void that is not a matter within the Commission’s jurisdiction.

[23] To the extent that Ms Loxton says that the ToS were signed based on “falsities” this claim is not the basis on which the Commission could ignore the binding nature of the settlement she reached with ADP.

[24] In Zoiti-Licastro v Australian Taxation Office 4 the Full Bench of the Australian Industrial Relations Commission held that:

Where the Commission finds that there is a complete answer to the applicant’s claim and dismisses the claim, there is no substance in any suggestion that the Commission has breached its duty to hear the application. And subject to the observance of the rules of natural justice, it is highly undesirable that the parties should be put to the expense of a full hearing when it is clear at the outset that the claim cannot succeed. Take a case in which there is a duly executed settlement agreement in evidence. Subject to the resolution of any argument about the binding nature of the agreement, the settlement would provide a complete answer to the claim and there would be no point in hearing the other evidence. 5

[25] Ms Loxton was on notice from the letter of 1 April 2020 that the Commission may dismiss her application because she had reached an agreement settling her unfair dismissal claim. She was provided with relevant references and then, when the notice of listing was sent, copies of the relevant decision in relation to matters such as this.

[26] After the Commission had finished hearing the matter and adjourned the proceedings Ms Loxton sent a further email to the Commission questioning why she was required to attend the hearing of the matter in circumstances where it was indicated that the ToS could not be overturned. Ms Loxton was given the opportunity to have the question of whether there was a valid settlement agreement determined without a hearing. She indicated that she wished to have a hearing and, out of an abundance of caution and to ensure a fair go all round, a hearing was held. Ms Loxton failed to put anything in the hearing to indicate that the ToS was not entered into by her such that the preliminary view I had indicated I had reached would be altered. To the extent Ms Loxton, in that email communication, sought to raise matters arising from the staff conciliation where the matter was settled, I have not had regard to that. I would note that, in any event, it would not change this decision.

[27] Section 587 of the Fair Work Act 2009 (FW Act) gives the Commission the power to dismiss an application. The Commission may dismiss an application for reasons other than those given in paragraphs (1)(a) to (c) in that section. In this matter I dismiss Ms Loxton’s claim for relief from unfair dismissal in the circumstances where there is a binding agreement between the parties. This settlement is a complete answer to Ms Loxton’s claim for relief from unfair dismissal. The application is therefore dismissed pursuant to s.587(1)(a) of the FW Act. An order to this effect shall be made. 6

COMMISSIONER

Appearances:

C. Loxton on her own behalf.

M. Spiridakis for ADP Employer Services.

Hearing details:

2020.
Melbourne by telephone:
May 18.

Printed by authority of the Commonwealth Government Printer

<PR718811>

 1 [2011] FCA 975.

 2   Ibid at paras 31. - 33.

 3   Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 cited in Thomas v Logica Pty Ltd PR933337; (20 June 2003).

 4   PR967544.

 5   Ibid, at [20]

 6   PR718812.