David Mackenzie v Luban Homes Pty Ltd - [2023] FWC 569

[2023] FWC 569

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Mackenzie
v

Luban Homes Pty Ltd

(U2022/12336)

COMMISSIONER SIMPSON

BRISBANE, 8 MARCH 2023

Application for an unfair dismissal remedy – jurisdictional objection – deed execution - whether matter subject to agreement to settle.

On 28 December 2022, Mr David Mackenzie (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against Luban Homes Pty Ltd (the Respondent).

On 20 January 2023, the Respondent filed a Form F3 Employer’s response objecting to the application on the jurisdictional grounds that the Applicant and Respondent agreed to a settlement payment on termination of employment where the Applicant signed a deed of settlement that released the Respondent from any liability from all claims out of or connected with the Applicant’s employment.

As the matter could not be resolved by conciliation, directions were issued for the filing of material and the matter was listed for hearing on 7 March 2023 to determine the jurisdiction of the application.

At the hearing the Applicant’s witness statement was admitted into evidence[1], and for the Respondent the witness statements of Ms. Jingjing Song, Director,[2] and Mr Hayden Donnelly, Site Supervisor,[3] from the Respondent, as well as a document referred to a signed settlement letter[4], and a Terms of Settlement Document.[5]

Background

On 16 November 2020, the Applicant commenced employment with the Respondent, who is engaged in the business of designing and constructing houses, as an apprentice carpenter based in the Gold Coast, Queensland.

The Applicant alleges in his witness statement that he worked more than 38 hours each week, regularly amounting to 50 hours per 5-day week but was not paid this overtime despite requests made by the Applicant in December 2021 and several request during 2022. The Applicant states that the Respondent assured him that he would be paid but received no payments relating to overtime.

This overtime payment dispute was running concurrent with the Applicant’s termination. The Applicant had been provided several warning letters from 26 September 2022 to 11 October 2022 due to the Applicant’s absence from work, which can be split into two different events where the Applicant did not attend work.

The first portion of Applicant’s absence from work occurred from 26 September 2022 to 7 October 2022. The Applicant did not attend work for this period without notice and was subsequently invited to a management meeting on 10 October 2022 with Ms Jingjing Song, Director, and Mr Hayden Donnelly, Site Supervisor, from the Respondent. At the meeting, the Applicant was advised that he had not attended work without notice for several days, which was considered unacceptable and amounted to unsatisfactory conduct in the Respondent’s view. The following performance expectations were reminded to the Applicant:

“Attending work on time (your supervisor has agreed you starting at fixied 9.00am and finishing at 5.00pm due to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 569
Decision Date: 8 MARCH 2023

CaseChat Overview and Summary

David Mackenzie, an apprentice carpenter, brought an unfair dismissal claim against his former employer, Luban Homes Pty Ltd, before the Fair Work Commission (FWC). Luban Homes Pty Ltd objected to the application on the grounds that Mackenzie had signed a deed of settlement which released the company from any liability from all claims connected with his employment, including the dismissal. The central issue before the Commission was whether Mackenzie was bound by the terms of the settlement agreement and deed, which would bar his unfair dismissal claim. The Commission considered the evidence of the parties, including Mackenzie’s claim that he did not read the deed and signed under duress, and the Respondent’s evidence that Mackenzie had signed the deed with full understanding and knowledge. The Commission found that a binding settlement agreement was reached between the parties, based on the evidence provided by the Respondent’s witnesses and the conduct of Mackenzie. The Commission held that Mackenzie was bound by the agreement and dismissed the application as frivolous or vexatious and having no reasonable prospects of success. The Commission concluded that the settlement agreement extinguished the pre-existing cause of action and the continued pursuit of the application was frivolous or vexatious. The application was dismissed in accordance with section 587 of the Fair Work Act 2009.

Orders