Isabella Litleton-Salmas v Omelnour Pty Ltd

[2021] FWC 2699

[2021] FWC 2699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Isabella Litleton-Salmas
v
Omelnour Pty Ltd
(U2021/1153)

DEPUTY PRESIDENT COLMAN MELBOURNE, 12 MAY 2021

Settlement agreement – application dismissed

[1] This decision concerns an application by Ms Isabella Litleton-Salmas for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] On 27 April 2021, Ms Litleton-Salmas sent to my chambers a settlement agreement bearing her signature. The agreement was also signed by Mr Samuel Youseff, on behalf of her former employer, Omelnour Pty Ltd, which trades as Fairfield City Medical Centre (respondent). The terms of settlement reflected an agreement reached by the parties in conference before me on 1 April 2021. Clauses 3.4 and 3.5 of the agreement provide that the parties release one another from liability connected to Ms Litleton-Salmas’ former employment with the respondent. Clause 3.1 requires the respondent to pay a settlement sum. Clause 3.9 provides that Ms Litleton-Salmas will discontinue the unfair dismissal application within seven days of the respondent paying the settlement sum. On 27 April 2021, the respondent advised my chambers that the settlement sum had been paid that day.

[3] On 10 May 2021, my associate wrote to Ms Litleton-Salmas stating that, despite reminders, she had not discontinued the unfair dismissal application, nor had she made any contact with the Commission since 27 April 2021. My associate advised Ms Litleton-Salmas that I proposed to dismiss the unfair dismissal application on 12 May 2021 after 2.00pm pursuant to s 587(1)(c) of the Act on the basis that, given the settlement agreement referred to above, the application had no reasonable prospects of success. Ms Litleton-Salmas has not sought to be heard.

[4] I consider that the settlement agreement is an accord and satisfaction which is a complete answer to Ms Litleton-Salmas’ unfair dismissal claim. This conclusion is unaffected by Ms Litleton-Salmas’ apparent breach of the settlement agreement by failing to discontinue her unfair dismissal application. She agreed to accept a payment to settle her claim. She has released the respondent from any liability connected to her employment, save in respect of certain matters which are not presently relevant. The Commission may have regard to the settlement in considering whether an application has no reasonable prospects of success for the purpose of s 587(1)(c) of the Act (see Australian Postal Corporation v Gorman [2011] FCA 975 at [31]-[33]). In light of the settlement agreement, the application has no reasonable prospects of success and I consider it appropriate to dismiss the application under s 587(1)(c).

[5] Ms Litleton-Salmas’ unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

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