Gregg Cook v Relationships Australia (NSW) Limited

[2015] FWC 7562

[2015] FWC 7562

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregg Cook
v
Relationships Australia (NSW) Limited
(U2015/5999)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Mr Greg Cook alleged that the termination of his employment by Relationships Australia (NSW) Limited was unfair.

[2] The application was listed for hearing in October 2015 and directions were issued for the parties to file material. On 10 August 2015, Mr Cook advised the Fair Work Commission that he had signed a deed of release and he was waiting for Relationships Australia to sign the deed and finalise the matter. As a consequence, Mr Cook did not file material and advised that in the unlikely event Relationships Australia reneged on the agreement he would then submit his material.

[3] On 3 September 2015, Mr Cook advised the Commission that there was a dispute about Relationships Australia’s obligation to reimburse him for counselling costs. On 22 September 2015, Mr Cook advised that he would not discontinue his unfair dismissal application until such time as this amount was paid. On 24 September 2015, Relationships Australia advised that the matter had been settled and made an application under section 399A(1)(c) of the Fair Work Act 2009. While the application was not made in accordance with the Fair Work Commission Rules 2013, I am prepared to waive compliance with the Rules and treat the letter sent to the Commission as an application.

[4] On 29 September 2015, I caused to be sent to the parties a letter. In that correspondence Relationships Australia was directed to provide a copy of the signed deed and evidence that it had complied with its obligations under the deed. Mr Cook was directed to file and serve any response to the s.399A application.

[5] On 21 October 2015, I wrote to the parties as follows:

“Deputy President Gooley is of the view that the facts in this matter are not disputed.

The deed was signed by both parties. The settlement sum as defined in the deed was paid. Mr Cook incurred costs of $600 for counselling. Relationships Australia has not reimbursed Mr Cook this sum.

The legal dispute between the parties is whether Relationships Australia is required under the deed or otherwise to pay Mr Cook an additional amount of $600 before he is required to discontinue his application.

Deputy President Gooley has formed the preliminary view that as there is no factual dispute between the parties she is not required to have a hearing and will decide the application to dismiss on the papers.

If you contend that there is a factual dispute as opposed to a legal dispute between the parties, please provide a statement of facts which you contend are not agreed by the close of business on 26 October 2015.”

[6] Relationships Australia confirmed that my understanding of the facts as stated was correct. Mr Cook did not respond.

Consideration

[7] On application by an employer the Commission has the discretion to dismiss an unfair dismissal application because an applicant has failed to discontinue an application after a settlement has been concluded.¹

[8] The Explanatory Memorandum said that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.”²

[9] In Australia Post v Gorman³ it was accepted that the Commission has the power to dismiss an application where terms of settlement have been reached between the parties to an unfair dismissal application because the application has no reasonable prospects of success.

[10] In this case Mr Cook has signed terms of settlement. The terms of settlement required Relationships Australia to pay Mr Cook some monies and the monies have been paid.

[11] The terms of settlement make no reference to any reimbursement of expenses. The terms of settlement release Relationships Australia from any claims which are broadly defined. The terms of settlement provide that the settlement sum is in full and final satisfaction of any entitlement Mr Cook may have. The terms of settlement required Mr Cook to discontinue the unfair dismissal application within seven days of receipt of the settlement sum. He has not done so.

[12] Mr Cook provided certain warranties in the terms of settlement and acknowledged that he understood the provisions of the deed and that Relationships Australia was relying on the deed.

[13] Mr Cook submitted that the reimbursement of $600 spent on counselling was an entitlement outstanding under the deed. He submits that the failure to reimburse the monies is a breach of Relationship Australia’s obligations under the deed and therefore his unfair dismissal application should not be dismissed.

[14] There is no reference in the settlement agreement to the reimbursement of these expenses. If Mr Cook has an entitlement to this reimbursement it does not arise from the deed. So much was acknowledged by Mr Cook in correspondence to Relationships Australia.

[15] If in fact Mr Cook has an entitlement under the deed to be reimbursed these expenses, then he is entitled to pursue that claim in a court. He misunderstands the jurisdiction of the Commission when he seeks the Commission order Relationships Australia to pay the $600.

[16] In this matter the facts are not in dispute. The deed was signed. The settlement sum was paid. Mr Cook incurred costs of $600 for counselling. Mr Cook contends that Relationships Australia is required under the deed to pay him an additional $600 and Relationships Australia deny that they have any obligation.

[17] I find in this matter that Mr Cook and Relationships Australia settled Mr Cook’s unfair dismissal application on the terms set out in the deed. I find that Relationships Australia has paid Mr Cook the settlement sum. In those circumstances Mr Cook had an obligation under the deed to file a notice of discontinuance and he has failed to do so.

[18] In those circumstances s.399A(1)(c) has been satisfied. I am then required to decide whether to exercise my discretion to dismiss Mr Cook’s application. Mr Cook freely entered into an arrangement to settle his unfair dismissal claim. In my view it is appropriate that parties be held to the agreements that they make. While Mr Cook was unrepresented in this matter there is no suggestion that he entered the deed under any disability. I will therefore exercise my discretion to dismiss Mr Cook’s unfair dismissal application.

DEPUTY PRESIDENT

1 S.399A of the Fair Work Act 2009

2 Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161- 163]

3 Australia Post v Gorman op cit

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