Mariam Dafallah v Aged Care Services Australia Group Pty Ltd T/A Aged Care Services Australia Group Pty Ltd (‘acsag')

[2016] FWC 8652

[2016] FWC 8652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mariam Dafallah
v
Aged Care Services Australia Group Pty Ltd T/A Aged Care Services Australia Group Pty Ltd (‘ACSAG’)
(U2016/6151)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 DECEMBER 2016

Application for relief from unfair dismissal – matter settled – application dismissed pursuant to s.587 of the Act.

[1] On 12 April 2016, Ms Mariam Dafallah made an application for unfair dismissal remedy in relation her dismissal under s.394 of the Fair Work Act 2009 (Application).

[2] On 27 April 2016, Aged Care Services Australia P/L filed its response to the Application.

[3] A Conciliation by telephone conducted on 23 May 2016 did not resolve the Application and it was listed for Arbitration Conference/Hearing on 25 August 2016. I conducted a telephone Mention on 15 August 2016 and listed the Application for a Member Assisted Conciliation before Commissioner Harper-Greenwell to take place immediately before the Arbitration Conference/Hearing on 25 August 2016.

[4] At the Member Assisted Conciliation before Commissioner Harper-Greenwell, both parties had legal representation, including a member of counsel. The Application was resolved, with the parties agreeing to written terms of settlement which were signed by both parties and witnessed.

[5] On 28 September 2016, Ms Dafallah attended the Registry of the Commission in Melbourne. She advised she was not happy about the terms of settlement and indicated she wanted the Application to be listed for Arbitration. As the Commission file indicated that the Application had been resolved pursuant to signed terms of settlement, Ms Dafallah was advised to seek legal advice.

[6] A further telephone Mention before me was listed for 24 October 2016 but was adjourned at the request of Ms Dafallah, following advice from her that she was trying to source new legal representation. Ms Dafallah was asked to contact the Commission when she was ready to proceed. Advice to this effect was received from Ms Dafallah on 16 November 2016 and the Application was listed before me for Mention on 29 November 2016 (the Mention), once particulars of her representative were confirmed. With permission, Mr Smith appeared for Ms Dafallah and Ms Pels for Aged Care Services Australia P/L.

[7] At the Mention, there was no dispute that the parties signed the terms of settlement however Mr Smith for Ms Dafallah put a range of propositions to me in written and oral submissions on her behalf. They included that Ms Dafallah had signed the terms under duress and had been denied the opportunity to have her case heard by the Commission and that she was not afforded an impartial mediation. More broadly, Mr Smith submitted that members of counsel were ill-equipped to represent parties in mediation and levelled a range of accusations against Aged Care Services Australia P/L, including that it had breached an undertaking given to the Fair Work Ombudsman pursuant to s.715 of the Act. In the alternative, Mr Smith sought to have Ms Dafallah’s unfair dismissal application converted to a general protections application.

[8] For its part, Aged Care Services Australia P/L submitted that the terms of settlement were validly entered into and that Ms Dafallah had been supported throughout the four-hour Member Assisted Conciliation by counsel, her solicitor and a support person. Ms Pels for Aged Care Services Australia P/L advised that it had complied with the terms of settlement and as a result of Ms Dafallah’s failure to file the Notice of Discontinuance required by the terms of settlement, made application for an order that the Application be dismissed for the reasons outlined in ss.587(1)(b) and 587(1)(c) of the Act.

[9] 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.

Consideration

[10] Dealing firstly with the alternate position put forward by Ms Dafallah, the decision of the Full Bench in Ioannou v Northern Belting Services 1 establishes it is not open to me to use the power to amend an application in s.586 of the Act to amend the Application in such a way that would transform it into a general protections application under s.365 of the Act. If pursuing a general protections application remains Ms Dafallah’s intention, she must meet the procedural and other requirements for the making of such an application.

[11] As to the complaint regarding the breach of an undertaking, s.715(6) of the Act makes it clear that if the Fair Work Ombudsman considers the person who gave the undertaking has contravened any of its terms, it may apply to a court for an order granting one or more of the orders under s.715(7) of the Act. It is open to Ms Dafallah to pursue this path if she is so inclined.

[12] Turning to the application that has been made by Aged Care Services Australia P/L for an order that the Application be dismissed and having regard to the material before me, I find that a binding agreement to settle Ms Dafallah’s application exists. It is not in dispute that the terms of settlement were signed by both parties. As has been outlined, Ms Dafallah had access to counsel, a solicitor and a support person for advice on the day of the Member Assisted Conciliation.

[13] In Australia Postal Corporation v Gorman, 2 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.3

[14] 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.” 4

[15] As can be seen from Australia Postal Corporation v Gorman, if there is a binding agreement between the parties, the Commission has the power to dismiss an application on the basis that it has no reasonable prospects of success. I am satisfied that in the circumstances before me, there is a binding agreement between the parties which has extinguished the Application and I should exercise my power under s.587(1)(c) of the Act to dismiss the Application on the basis that it has no reasonable prospects of success. An order to this effect will be issued in conjunction with this decision.

[16] As to what amounts to an application by Ms Dafallah to have the terms of settlement set aside, in the context of an application to have a Notice of Discontinuance set aside, the Full Bench in AB v Tabcorp Holdings Limited 5 has previously stated that the Commission cannot grant a declaration that a Notice of Discontinuance was a nullity if filed by mistake or under duress because, as an arbitral body, the Commission cannot grant declaratory relief.6 I consider the same principle applies in relation to signed terms of settlement. If Ms Dafallah seeks a declaration that the terms of settlement were a nullity because they were signed under duress, such an application would have to be made to a court.

DEPUTY PRESIDENT

 1   [2014] FWCFB 6660.

 2 [2011] FCA 975.

 3 Ibid at [31].

 4 Ibid at [33].

 5   [2015] FWCFB 523.

 6 Ibid at [11].

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