Garry Hart v Truss Guard Rail Pty Ltd

[2017] FWC 196

[2017] FWC 196

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Garry Hart
v
Truss Guard Rail Pty Ltd
(U2016/6050)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 JANUARY 2017

Application for relief from unfair dismissal – matter settled – application dismissed pursuant to s.587 of the Act.

[1] On 8 April 2016, Mr Garry Hart made an application for remedy for unfair dismissal (the Application) under s.394 of the Fair Work Act 2009 (the Act). Mr Hart said that his employment had been terminated by Truss Guard Rail Pty Ltd (Truss Guard) on 17 March 2016.

[2] On 8 June 2016, Truss Guard filed a Form F3 – Employer Response to Unfair Dismissal Application with the Commission. In its Form F3, Truss Guard raised jurisdictional objections to Mr Hart’s application, stating that the application was lodged more than 21 days after his dismissal took effect and that it is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.

[3] The matter was initially listed for conciliation on 17 May 2016, however following Truss Guard filing its Form F3 raising the objection that the application was lodged out of time, the conciliation was cancelled and the matter was listed for an Extension of Time Conference/Hearing on 10 June 2016.

[4] Following the Extension of Time Conference/Hearing on 10 June 2016, Commissioner Ryan dismissed Truss Guard’s jurisdictional objection and granted Mr Hart an extension of time to lodge his application. The matter was subsequently referred for further programming.

[5] On 7 July 2016, Directions were issued to parties in relation to a Jurisdiction and Arbitration Conference/Hearing that was subsequently listed for 8-9 September 2016.

[6] On 19 July 2016, Mr Hart contacted the Commission to advise that he had received an offer of settlement from Truss Guard and stated that he would keep the Commission informed as to the status of settlement discussions between the parties.

[7] On 4 August 2016, Truss Guard sent an email to the Commission attaching a terms of settlement document signed by both parties. In this email correspondence, Truss Guard advised that on the basis of the settlement agreement, it would not be complying with directions and requested that the hearing dates be vacated.

[8] On 8 August 2016, Mr Hart telephoned the Commission and indicated that the matter has settled and some payment had been made to him. In response to Mr Hart’s inquiry as to whether he was still required to file submissions in accordance with Directions, the Commission advised Mr Hart that he could put a request in writing that the Directions be vacated. Mr Hart subsequently emailed the Commission to confirm that a settlement agreement had been signed and requested that the Directions be vacated. Mr Hart further stated that once Truss Guard had complied with the terms of settlement, he would complete a Form F50 – Notice of Discontinuance.

[9] On 9 August 2016, a Notice of Listing was sent to parties vacating Directions due to the advice received regarding settlement. Approximately one month later on 7 September 2016, the Commission sent a further Notice of Listing to vacate the hearing dates. This correspondence stated that a Notice of Discontinuance was to be filed with the Commission in due course.

[10] On 31 October 2016, the Commission sent Mr Hart an email inquiring if settlement was completed and enclosing a blank Notice of Discontinuance. No response was received from Mr Hart to this correspondence.

[11] Further attempts to contact Mr Hart by telephone were made by the Commission on 31 October 2016 and 18 November 2016 and voice mails were left asking that he contact the Commission.

[12] As no response was received from Mr Hart to the various attempts to contact him, on 18 November 2016 the Commission sent a letter advising Mr Hart that he had until close of business on 25 November 2016 to file a Notice of Discontinuance. This correspondence further advised Mr Hart that if the Commission did not hear from him within this timeframe, his matter would be dismissed.

[13] To date, no response has been received from Mr Hart to the correspondence of 18 November 2016. On 11 January 2017, the former representative for Truss Guard confirmed that it had been advised by Truss Guard that it had paid the settlement amount to Mr Hart.

Consideration

[14] I am satisfied a binding agreement to settle Mr Hart’s application exists. Both Truss Guard and Mr Hart advised in email correspondence that a settlement agreement had been reached and have provided the Commission with copies of the signed terms of settlement. The settlement monies appear to have been paid to Mr Hart.

[15] 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

[16] 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

[17] As can be seen from Australia Postal Corporation v Gorman, if there is a binding agreement between the parties, the Commission has the power to dismiss an application on the basis that it has no reasonable prospects of success. As I am satisfied that in the circumstances before me, there is a binding agreement between the parties which has extinguished the Application, I consider it appropriate and open to me to exercise my power under s.587(1)(c) of the Act to dismiss the Application on the basis that it has no reasonable prospects of success. An order to this effect will be issued in conjunction with this decision.

DEPUTY PRESIDENT

 1 [2011] FCA 975.

 2 Ibid at [31].

 3 Ibid at [33].

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