Inez Veronica Little v Anfield Muirs Pty Ltd T/A Good Guys

[2015] FWC 7343

[2015] FWC 7343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Inez Veronica Little
v
Anfield Muirs Pty Ltd T/A Good Guys
(U2015/4906)

COMMISSIONER WILLIAMS PERTH, 26 OCTOBER 2015

Termination of employment.

[1] This decision concerns an unfair dismissal remedy application by Ms Inez Veronica Little (Ms Little or the applicant) made under section 394 of the Fair Work Act 2009 (the Act). The respondent is Anfield Muirs Pty Ltd T/A Good Guys (the respondent).

[2] This application for an unfair dismissal remedy was made on 17 April 2015.

[3] The respondent objects to the application asserting that Ms Little was not dismissed and in any event that she has entered into a settlement agreement which includes a provision that she would withdraw and fully discontinue any applications against the respondent in any Court, Tribunal or Commission and accordingly there is no prospect of her succeeding with this application and it should be dismissed.

[4] At the hearing of this matter Ms Little gave evidence on her own behalf and the respondent’s Managing Director Ms Elaine Anfield (Ms Anfield) gave evidence as did Ms Nadine Kamardeen (Ms Kamardeen) from Allianz Insurance.

Factual findings

[5] The applicant was employed by the respondent which operates a Good Guys store at Cannington.

[6] Relevantly in the middle of 2014 Ms Little made a workers compensation claim against the respondent alleging she sustained an injury to her right arm when carrying out her duties. The claim was disputed by the insurer and Ms Little was notified of this in October 2014.

[7] Ms Little applied to WorkCover disputing the insurer’s decision to deny her claim. In the middle of November 2014 Ms Little appointed DBC Workers Compensation Advocacy Pty Ltd to represent her.

[8] During one of a number of meetings regarding this Ms Little mentioned that she had also sustained an injury to her neck on 17 February 2015. Subsequently Ms Little lodged a separate claim regarding this which was also disputed by the insurer.

[9] There were discussions between the insurer’s representative and Ms Little’s representatives about a potential negotiated settlement of her claims.

[10] On balance the evidence is that around the latter part of March 2015 Ms Kamardeen advised Ms Anfield that a settlement with the applicant had been reached. The evidence is that Ms Anfield at this point understood that the settlement involved a voluntary resignation by Ms Little and that because of this and the fact that she was not receiving any weekly workers compensation payments Ms Kamardeen advised Ms Little could then be removed from the payroll system.

[11] Ms Little received a pay slip for the payment date 27 March 2015 which includes pro rata annual leave payments on termination.

[12] Included in the materials filed by Ms Little is a copy of an email from Ms Anfield dated Sunday, 29 March 2015 and replied to by email from Ms Little which includes the following statement in reference to an email received from Ms Kamardeen:

“This email was received on 19th March from Nadine, so we have terminated your employment the final payment was made yesterday.”

[13] Based on this evidence then I am satisfied that around late March 2015 the respondent had dismissed the applicant but had done so on the understanding that her voluntary resignation as part of the settlement was imminent.

[14] On 4 May 2015 Ms Little signed a document entitled Deed of Settlement and Release. That settlement was between Ms Little, Anfield Muirs Pty Ltd T/A The Good Guys Cannington and Allianz Australia Insurance Limited. This document referred to the two claims Ms Little had made under the Workers Compensation and Injury Management Act 1981. The deed reflects the agreement reached between the insurer and Ms Little whereby without any admission of liability the workers compensation claims were settled on the basis of a payment to Ms Little of $65,000 plus $3,500 for costs inclusive of disbursements.

[15] Paragraph 4 of the deed of settlement states that in consideration of the payment of the settlement sum Ms Little discharges the respondent and the insurer from all suits, actions claims demands etc. which Ms Little may presently have or might have against them relating to the alleged injuries. Further that Ms Little undertakes not to commence or proceed with any suits, actions or proceedings etc. in connection with the alleged injuries and acknowledges that she cannot proceed with the District Court action which was on foot and that she will exceed execute and file consent orders dismissing this action.

[16] The following paragraph 5 then reads as follows:

“In consideration of the settlement Little also agrees to withdraw and fully discontinue all and any other actions, applications or proceedings which may have been instituted by or on behalf of Little against Good Guys in any court, tribunal or commission.”

[17] At the same time that Ms Little and the representatives of the insurer signed this deed Ms Little signed a resignation letter which reads as follows:

“I hereby tender my resignation from employment as a sales assistant with the Good Guys Cannington effective from the date the Director of WorkCover WA advises of non-disapproval of the Deed of Settlement and Release finalising my workers compensation claims.”

[18] By letter dated 8 May 2015 to the insurer’s lawyers the Director of WorkCover WA advised that he did not intend to disapprove of the settlement being affected in accordance with the terms of the documents the parties had executed.

[19] Consequently I am satisfied that Ms Little intended to resign from her employment as of 8 May 2015.

Consideration

[20] Based on the above facts I am satisfied then that the respondent did dismiss Ms Little around the end of March 2015 and whilst it could have no effect Ms Little had intended to resign from her employment effective 8 May 2015.

[21] It is clear from the timeline of events that when Ms Little signed the deed of settlement on 4 May 2015 both parties were aware of the unfair dismissal remedy application she had lodged on 17 April 2015 with this Commission. A copy of this application was served on Ms Anfield by email by the Commission on 24 April 2015 and the respondent lodged its form F3−Employer’s Response to Ms Little’s application on Friday, 1 May 2015.

[22] Paragraph 4 of the deed of settlement refers to Ms Little being required to discharge the respondent and the insurer from claims and applications arising out of or in connection with her alleged injuries and that she is not to commence or proceed with any such claims that are in connection with her alleged injuries.

[23] Paragraph 5 of the deed of settlement is quite separate and does not make any reference to Ms Little’s alleged injuries. Paragraph 5 states that Ms Little has agreed “to withdraw and fully discontinue any other actions, applications or proceedings which may have been instituted by or on behalf of Ms Little against Good Guys in any court, tribunal or commission.” Self-evidently this application for an unfair dismissal remedy is an application instituted by Ms Little against Good Guys and so falls within paragraph 5 of the deed of settlement.

[24] I am satisfied that paragraph 5 of the deed of settlement requires Ms Little to withdraw and fully discontinue this application.

[25] The respondent’s form F3−Employer’s response to Ms Little’s unfair dismissal application explains that the employer objects to the application because the applicant has entered into a deed of settlement which incorporates an acknowledgement that Ms Little will make no further claims against the respondent. I take this to be an application by the respondent employer under section 399A of the Act which is set out below:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[26] The plain meaning of the words in paragraph 5 of the deed of settlement as explained above clearly cover this application. It is clear that a settlement agreement had been concluded upon the signing of the deed of settlement. Ms Little was obliged by the terms of the settlement she had entered into to discontinue this application and has unreasonably failed to do so. Consequently I will now under section 399A of the Act dismiss this application.

[27] Should there be any challenge to the view a section 399A application was made because the respondent did not make a formal application it is sensible for the Commission to ensure that this matter is put beyond doubt. Even if no application under section 399A of the Act had been made the Commission itself is empowered to dismiss an application on its own motion where that application has no reasonable prospects of success. This is provided for in section 587 of the Act which is set out below:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[28] The question of whether or not a settlement entered into by the parties resolves a matter before the Commission has been considered by the Federal Court in relation to an unfair dismissal application. In Australian Postal Corporation v Gorman and Another 1, Besanko J of the Federal Court of Australia 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.
...

[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.”

[29] A recent Full Bench decision in Paul Passehi v Link SA Pty Ltd endorsed this approach and accepted that a claim of unfair dismissal was extinguished by the settlement agreement an applicant had entered into and that this provided a proper base for the unfair dismissal application to be dismissed under section 587(1)(c) of the Act 2.

[30] In signing the deed of release Ms Little agreed to withdraw and fully discontinue any other applications against the respondent. In the same way Ms Little is entitled to expect the respondent will follow the words of that deed and pay her the settlement monies the respondent is entitled to expect she will discontinue this application. It would be wrong for the Commission to ignore what the parties agreed to in this deed and allow this application to proceed. Consequently this application will now be dismissed.

[31] An order dismissing this application will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

V. Little on her own behalf.

E. Anfield on behalf of the respondent.

Hearing details:

2015.

Perth:

October 6.

 1 [2011] FCA 975.

 2  [2015] FWCFB 3499 at paragraph 15.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR573273>