Kerrie Lerossignol v Institute for Aboriginal Development (Aboriginal Corporation)

[2019] FWC 185

[2019] FWC 185

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kerrie Lerossignol
v
Institute for Aboriginal Development (Aboriginal Corporation)
(U2018/8570)

COMMISSIONER WILSON MELBOURNE, 14 JANUARY 2019

Application for an unfair dismissal remedy.

[1] On 21 August 2018, Ms Kerrie Lerossignol made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). That application was assigned matter number U2018/8570, and disclosed the Respondent to be the Institute for Aboriginal Development (Aboriginal Corporation).

[2] A conciliation conference was held before a Fair Work Commission conciliator on 25 September 2018, where Commission records indicate that the matter did not settle. On 15 October 2018 the matter was allocated to me for arbitration. Before listing the matter for hearing the matter was listed for a further conciliation by me on 31 October 2018 where settlement of the matter occurred between the parties subject to approval from the Aboriginal Corporation’s board of directors.

[3] Immediately after the conciliation, on the same day the Aboriginal Corporation’s representative confirmed that approval of the settlement from the board of directors had been confirmed, inviting the Commission to draft the terms of settlement and provide them to parties.

[4] Draft terms of settlement were emailed to parties on 1 November 2018.

[5] On 4 December 2018 the Aboriginal Corporation’s representative sought clarification that the Applicant had provided a Form 50 given that payment of settlement had occurred on 1 November 2018. After seeking clarification from the Applicant on the matters raised by the Aboriginal Corporation’s representative, Ms Lerossignol confirmed on 5 December 2018 that she would be providing a signed F50 on 6 December 2018 as she ‘lives out of town and has limited internet access’. The Applicant failed to provide a Form 50 and was again contacted on 19 December 2018 regarding the outstanding form however no response was provided.

[6] On 21 December 20187, my Chambers issued written correspondence to the Applicant requesting a Form F50 be provided in order to discontinue the matter in accordance with s.587 of the Act. The correspondence noted that a binding settlement had been made between parties to an unfair dismissal application and that therefore the Commission is precluded from furtherance of the application for reason of it not having reasonable prospects of success. That correspondence sought a notice of discontinuance be provided by close of business Thursday, 10 January 2019. No notice of discontinuance however, was forthcoming.

[7] Having regard to the material before me, I find that there is, in existence, a binding agreement to settle Ms Lerossignol’s application. There is nothing before me to suggest that the agreement reached in that conciliation was not binding on the parties.

[8] Section 587(1) of the Act provides as follows:

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.

[9] In Australia Postal Corporation v Gorman, 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. 1 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.” 2

[10] I am satisfied that in the circumstances where there is a binding agreement between the parties, and in the absence of any material to the contrary, I should exercise my power under s.587(1)(c) of the Act to dismiss Ms Lerossignol’s application. An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

 1 Ibid at [31].

 2 Ibid at [33].

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