Justin Murray v FlameStop Corporate Services Pty Ltd T/A FlameStop
[2016] FWC 6232
•6 SEPTEMBER 2016
| [2016] FWC 6232 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Justin Murray
v
FlameStop Corporate Services Pty Ltd T/A FlameStop
(U2016/8560)
COMMISSIONER BISSETT | MELBOURNE, 6 SEPTEMBER 2016 |
Application for relief from unfair dismissal - jurisdictional objection – extension of time – no exceptional circumstances – application dismissed.
[1] Mr Justin Murray has made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal. He was employed by FlameStop Corporate Services Pty Ltd T/A FlameStop (FlameStop). His employment was terminated on 23 March 2016. FlameStop says that he was not dismissed but resigned his employment.
[2] Mr Murray made this application for unfair dismissal on 25 July 2016 (the second application). If Mr Murray’s application is properly made and can be considered by the Commission, his application was made 124 days after his dismissal took effect, 103 days after the 21 day time limit for making such an application.
[3] Mr Murray seeks an extension of time within which to make his application. He submits that there are exceptional circumstances that such an extension should be granted and that these circumstances relate to matters associated with his first application.
The first application
[4] Mr Murray made his first application 1 for unfair dismissal on 12 April 2016, within the 21 day time limit prescribed in s.394 of Fair Work Act 2009 (the Act).
[5] That application was subject to conciliation on 23 May 2016 where the parties reached an agreement to ‘fully and finally settle the matter’. That agreement was reduced to writing and signed by the parties around 25 May 2016. The settlement included the payment of an amount of money, to be paid within seven days of the parties signing the Terms of Settlement (the agreement).
[6] Whilst the agreement did not require it, Mr Murray understood he was required to file a Notice of Discontinuance so, on the signing of the agreement, did so. The Notice of Discontinuance indicates that the matter is discontinued as part of a settlement agreement and is dated 25 May 2016. The Notice of Discontinuance was filed in the Commission on 25 May 2016.
[7] Mr Murray proceeded on holidays and returned to Australia on or around 8 June 2016.
[8] Mr Murray says that FlameStop did not pay the amount specified in the agreement. He spoke to the Commission conciliator who advised that there was no more the Commission could do on the matter. He then proceeded to take action in the Magistrates’ Court of Western Australia. He sent relevant material to Mr Birch, a Director of FlameStop, by registered post but says Mr Birch refused to accept or sign for the letter and it was subsequently returned to him. Mr Murray says he is unable to pursue the payment in the Magistrates’ Court without Mr Birch accepting delivery of the necessary papers.
[9] Mr Murray therefore says that the delay in making the second application was caused by his exhausting all options to get FlameStop to pay the amount due to him under the settlement agreement arising from the first application. He said that these circumstances are extraordinary.
[10] Mr Murray submits that it is possible for the Commission to set aside a Notice of Discontinuance in circumstances where ‘a notice [has] been filed based on the settlement of a matter where the respondent had then failed to honour its side of the settlement.’2
[11] Mr Murray referred to the decision in Australian Postal Corporation v Gorman3 whereBesanko J observed that:
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.4
[12] Mr Murray submits that FlameStop has unilaterally decided that it is no longer bound by the agreement because it says it has discovered conduct of Mr Murray which occurred prior to his dismissal that provides grounds for it to dismiss him. Mr Murray says that in doing so, FlameStop has unilaterally determined the agreement it entered into with him in relation to the first application to be invalid. Further, he says that whilst the cause of action, post agreement, may be in relation to the agreement, by walking away from that agreement FlameStop has extinguished that cause of action (i.e. enforcement of the agreement). On this basis, he says he should be able to re-commence (by setting aside the Notice of Discontinuance or by the second application) his application for unfair dismissal.
[13] At the commencement of proceedings I granted FlameStop permission to be represented by a lawyer in the matter before me.
[14] FlameStop says that Mr Murray is attempting to deal with the enforcement of the agreement reached in respect of the first application through the second application. It says this is an inappropriate use of an application for unfair dismissal.
[15] FlameStop admits that this is a highly unusual case, suggests the second application is in the wrong jurisdiction and that the Commission may be barred from dealing with it because it has already dealt with the matter. This, it submits, is likely because the second application made by Mr Murray is identical to the first application and the first application has been dealt with.
Conclusion
[16] I accept that, based on the authority in Narayan v MW Engineers Pty Ltd 5I cannot set aside the Notice of Discontinuance filed by Mr Murray in respect of the first application. I cannot therefore deal with the first application.
[17] The question is however, whether Mr Murray can make a second application in the same terms and in respect of the same matter as the first application.
[18] The settlement agreement suggests that the ‘matter’, that is the circumstances in relation to Mr Murray’s dismissal, has been dealt with.
[19] Despite the eloquent submissions of Mr Murray to the contrary, an agreement is not set aside by one party walking away from it (unless a specific term of the agreement allowed for such to occur) such that the original action is enlivened. An agreement has been reached between the parties and executed and, as was said in Australian Postal Corporation v Gorman,6 the cause of action that now exists is in relation to that agreement and not the matter that led to the agreement. That enforcement of the agreement is a matter for the courts and not the Commission to determine.
[20] In Zoiti-Licastro v Australian Taxation Office, 7 the Full Bench of the Australian Industrial Relations Commission held that:
[20] Where the Commission finds that there is a complete answer to the applicant’s claim and dismisses the claim, there is no substance in any suggestion that the Commission has breached its duty to hear the application. And subject to the observance of the rules of natural justice, it is highly undesirable that the parties should be put to the expense of a full hearing when it is clear at the outset that the claim cannot succeed. Take a case in which there is a duly executed settlement agreement in evidence. Subject to the resolution of any argument about the binding nature of the agreement, the settlement would provide a complete answer to the claim and there would be no point in hearing the other evidence.
[21] In this case, I am satisfied that the agreement reached between Mr Murray and FlameStop is a complete answer to the claim. It is not in dispute that during the course of conciliation of the matter, Mr Murray and FlameStop reached agreement, they had the terms of that agreement reduced to writing and they signed that agreement.
[22] Mr Murray has (inadvertently) sought to rely on the decision at first instance in Narayan v MW Engineers Pty Ltd 8 to support his proposition that I can set aside the Notice of Discontinuance. On appeal, the Full Bench in Narayan v MW Engineers Pty Ltd9overturned the decision at first instance and found that there is “no power to grant (or refuse) Mr Narayan’s application to set aside the Notice of Discontinuance… Mr Narayan is at liberty to file another unfair dismissal application in relation to the termination of his employment… Any such application will be subject to the time periods specified in s.394(3).”10
[23] In any event, the circumstances of Mr Murray can be distinguished from those in Narayan v MW Engineers Pty Ltd 11where Mr Narayan’s application for unfair dismissal was never dealt with by the Commission. The application was discontinued before it went to conciliation. There was no agreement reached to settle the matter.
[24] For the reasons of the Full Bench in Narayan v MW Engineers Pty Ltd, 12 I am satisfied that I cannot set aside the Notice of Discontinuance such that the first application cannot be re-agitated. In these circumstances, it is a matter of whether the second application can be made and if an extension of time should be granted for making of the second application.
Should I grant an extension of time within which Mr Murray can make his second application?
[25] Section 394 of the Act states:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[26] The decision to grant an extension of time is a discretionary decision (this is evident by the phrase ‘the FWC may grant an extension of time…’). Prior to considering whether to exercise my discretion however, I must be satisfied that exceptional circumstances exist. In considering that, I have considered each of the matters in s.394(3).
[27] I am satisfied in this case, that there is a reasonable explanation for the delay in Mr Murray making the second application to the Commission. I accept that the delay was caused by him seeking to enforce the agreement in respect to the first application.
[28] There is no dispute that Mr Murray was aware of his dismissal (although FlameStop does not concede that he was dismissed) at the time it took effect.
[29] FlameStop concedes that there is little prejudice to it caused by the delay.
[30] Mr Murray says that his application is not without merit. He submits that FlameStop’s settlement of the first application indicates that it had merit. The second application is on the same grounds as the first application and therefore must have merit.
[31] FlameStop submits that the second application is without merit and has no reasonable prospect of success. Further, it says that the conduct FlameStop became aware of after the settlement agreement was reached in the first conciliation constitutes serious misconduct.
[32] I make no finding as to the merits of the application itself. In particular, it cannot be that a decision to settle by one party is a concession that the other’s claim or arguments have merit. As the agreement states, the ‘Respondent denies the allegations’ [of unfair dismissal].
[33] No submission is made as to fairness.
[34] I am not satisfied that there are exceptional circumstances in this case. Whilst Mr Murray thought he had an agreement to settle his claim and had sought to enforce that agreement, a further application is not a substitute for enforcing his existing agreement in the appropriate court. That Mr Murray’s application may be novel is not grounds to grant an extension of time.
[35] Whilst I have sympathy for Mr Murray and the situation he is in, and whilst it is not usual (I hope) for parties entering into an agreement to settle a matter before the Commission to not abide by those terms, the totality of the circumstances are such that, even if I had found that there were exceptional circumstances, I would not have exercised my discretion to grant an extension of time. This is because I am satisfied that the application cannot be made because the matter has been settled.
[36] That Mr Murray has made a fresh application does not mean it is about a separate matter. A comparison of the first and second application shows that they are the same matter. I am satisfied that the ‘matter’ subject to the second application has been dealt with by the Commission and has been settled through the first application.
[37] The ‘cause of action’ open to Mr Murray is enforcement of the agreement he has with FlameStop. It is not a matter for the Commission.
[38] Mr Murray’s application for an extension of time is therefore refused. His application is made outside the time prescribed by the Act and is therefore not properly made. The application is therefore dismissed.
[39] An order 13 to this effect will be issued with this decision.
COMMISSIONER
Appearances:
M Murray on his own behalf.
N. Noonan for FlameStop Corporate Services Pty Ltd T/A FlameStop.
Hearing details:
2016.
Melbourne:
August 29.
1 U2016/1720.
2 Narayan v MW Engineers Pty Ltd,[2013] FWC 1329, [14].
3 [2011] FCA 975.
4 Ibid, [31].
5 [2013] FWCFB 2530.
6 [2011] FCA 975.
7 PR967544.
8 [2013] FWC 1329.
9 Ibid.
10 Ibid, [30].
11 [2013] FWC 1329.
12 [2013] FWCFB 2530.
13 PR585022.
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