Lydia Yew v S.F. Express (Australia) Pty Ltd

[2018] FWC 6699

[2018] FWC 6699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lydia Yew
v
S.F. Express (Australia) Pty Ltd
(U2018/6459)

COMMISSIONER MCKINNON MELBOURNE, 30 OCTOBER 2018

Application for an unfair dismissal remedy – whether binding settlement agreement – whether reasonable prospects of success – application dismissed.

[1] This decision concerns an application by Lydia Yew to re-open an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) on the basis that the terms of a settlement agreement reached in the matter have not been followed.

[2] The unfair dismissal application was conciliated on 19 July 2018. SF Express (Australia) Pty Ltd (SF Express) was legally represented but Ms Yew was not represented.

[3] It is common ground that there was an agreement on terms of settlement and that the parties subsequently entered into a Deed of Release in the matter. It is also common ground that SF Express has not complied with certain terms of the Deed of Release between them, including in relation to payment of any settlement sum.

[4] The question is whether there remains a matter before the Commission or whether the agreement reached on 19 July 2018 and/or the Deed of Release signed by Ms Yew on 24 July 2018 was binding and brought an end to the unfair dismissal application, such that the application should now be dismissed.

[5] The matter was heard on 29 October 2018. SF Express was represented with permission.

The evidence

[6] Ms Yew gave evidence about the conciliation conference in this matter on 19 July 2018. She confirmed that agreement was reached to settle her claim and that the details were to be worked out directly with lawyers for SF Express after the conference. After email correspondence between the parties, a Deed of Release was signed by Ms Yew and sent to SF Express on 24 Jul 2018. Ms Yew said after she sent the Deed of Release to SF Express, “it went silent”. She eventually received a copy of the Deed of Release signed by SF Express on 23 August 2018. 1

[7] Mr Stephen Schoninger, lawyer for SF Express, filed an Affidavit in the matter attesting to the settlement outcome reached at conciliation and attaching a copy of the signed Deed of Release. 2

The Deed of Release

[8] I am satisfied on the evidence that there was an agreement to settle Ms Yew’s unfair dismissal application on 19 July 2018 and that the parties subsequently formalised their agreement by entering into the Deed of Release on 24 July 2018 (Ms Yew) and in the period between 24 July 2018 and 22 August 2018 (SF Express) respectively. 3

[9] The settlement agreement amounts to an accord and satisfaction. It binds the parties to carry each of its agreed terms to execution. It also extinguishes the existing cause of action (that is, the unfair dismissal application) and replaces it with a new cause of action based on the Deed of Release. 4

[10] The Commission can recognise a binding settlement and dismiss an application that has no reasonable prospects of success on that basis under section 587 of the Act. 5 In this matter, the accord and satisfaction is a complete answer to Ms Yew’s unfair dismissal application. I am not at all satisfied that her application is frivolous and vexatious but because of the settlement agreement, her application has no reasonable prospects of success.

Conclusion

[11] The application for an unfair dismissal remedy in this matter is dismissed.

[12] There remains a dispute between the parties about whether each has complied with their obligations under the Deed of Release. Central to that dispute is the allegation that Ms Yew deleted a significant volume of data from the company laptop on 26 June 2018 (after her dismissal, but before the settlement agreement was made) in breach of her obligation under the Deed to return the laptop “including its data” to SF Express. Ms Yew says she returned all company property as required by the Deed of Release and that SF Express is in breach of the Deed of Release by failing to pay the agreed settlement sums.

[13] Questions of compliance and enforcement of binding settlement agreements are not matters over which the Commission has jurisdiction. They are matters properly brought before the courts, if necessary, to require the parties carry to their agreement to execution.

COMMISSIONER

Appearances:

L Yew on her own behalf

S Schoninger for S.F. Express (Australia) Pty Ltd

Hearing details:

2018.

Melbourne:

October 29.

Printed by authority of the Commonwealth Government Printer

<PR701883>

 1   Audio recording of hearing on 29 October 2018

 2   Exhibit 1, Affidavit of Stephen Schoninger

 3   Exhibit 1; Submissions of Lydia Yew dated 16 August 2018; Audio recording of hearing on 29 October 2018

 4   Australian Postal Corporation v Gorman [2011] FCA 975 at [31] per Besanko J

 5   Ibid at [33]