Michael Cowley v Dyesol Pty Ltd
[2014] FWC 2480
•11 APRIL 2014
[2014] FWC 2480 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Cowley
v
Dyesol Pty Ltd
(U2013/17628)
COMMISSIONER DEEGAN | CANBERRA, 11 APRIL 2014 |
Application for relief from unfair dismissal.
[1] On 20 December 2013 Mr Michael Cowley, the applicant, lodged in the Fair Work Commission (the Commission) an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The applicant alleged that the termination, on 3 December 2013, of his employment with Dyesol Pty Ltd (the employer) had been unfair.
[2] On 24 January 2014 the employer lodged with the Commission an Employer Response to the Unfair Dismissal Application (Form F3) which indicated that there were jurisdictional objections to the application. The employer claimed that the applicant had not been dismissed, that the employment had ceased by mutual agreement on 3 December 2013 and that the applicant and the employer had agreed to a settlement which was reduced to writing and signed by both parties.
The Legislation
[3] The Act provides for the conduct of matters before the Commission. Relevantly to this matter s.587 provides:
“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.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
The Employer’s Case
[4] At the hearing of the jurisdictional objection evidence was given for the employer by Ms Judith Pritchard, the Human Resources Manager. Ms Pritchard’s evidence was contained in the Form F3 1 (prepared by Ms Pritchard) and given orally at the hearing.
[5] According to Ms Pritchard:
- The applicant had been the subject of a disciplinary meeting (involving both the Chief Executive Officer (CEO) and her) in April 2013 and had been made the subject of a performance improvement plan (PIP);
- It was stated in the PIP that any further misconduct might lead to termination of the applicant’s employment;
- As a consequence of the applicant’s threatening and aggressive behaviour towards other employees, which the employer considered to be gross misconduct, the applicant was required to attend a further disciplinary meeting with Ms Pritchard and the CEO on the afternoon of 3 December 2013;
- At the meeting the applicant was told by the CEO that, while it was open to the company to terminate his employment immediately as a result of his gross misconduct he was being offered two options:
- The applicant was given about 15 or 20 minutes to consider the options and then returned to advise that he would sign the deed of release.
He could be placed on another PIP which would, if breached, result in his instant dismissal; or
The employer was prepared to enter into a deed of settlement with him whereby his employment ceased with effect from that day and he would be paid a severance payment.
[6] According to Ms Pritchard there was a discussion about the amount of the payment that would be made under the terms of the settlement document, and then a final deed was prepared for signature. The executed deed 2 was tendered. Also tendered was the final statement3 of the payment made to the applicant on the cessation of his employment, which indicated that the gross payment made to the applicant was $23,428.97 ($15,922.95 net). The settlement deed provided for a net payment to the applicant $12,191.84.
[7] It was the evidence of Ms Pritchard that she, together with the CEO of the employer, had been present at the disciplinary meeting involving the applicant on 3 December 2013. She believed the meeting commenced about 2 or 2.30pm. After the meeting Ms Pritchard accompanied the applicant to his desk to collect his personal belongings. The applicant left the premises shortly thereafter.
[8] When cross-examined by the applicant Ms Pritchard agreed that he had requested an adjournment of the meeting on 3 December to consider the offer made and that this had been allowed. She disagreed that the applicant had only been allowed five minutes immediately outside the office (which had glass walls). She stated that there had been no conversation about where the applicant would consider the options and that he had taken himself to a desk in the vicinity of the office. She also stated that no time was stipulated for the applicant’s consideration.
[9] Ms Pritchard conceded that after the applicant had been on the April PIP for one month he had satisfactorily met the requirements set for him. When asked whether, at his annual performance assessments, the applicant had received better than satisfactory results Ms Pritchard stated that she recalled his managers had noted that he needed to improve on certain behaviours and attitude and that his managerial skills needed improvement.
[10] It was also Ms Pritchard’s evidence that there was a second adjournment during the meeting on 3 December, at which time she and the CEO agreed between them that an additional month should be added to the payout already offered to the applicant. She believed that it was an additional amount included in the leave entitlement. When it was put to her by the applicant that the CEO had originally spoken of a figure of $25,000 before tax, she had no recollection of this amount being discussed. She only recalled the figure being expressed in months.
[11] When asked if she recalled the options put to the applicant at the meeting Ms Pritchard replied:
‘--Yes. Richard mentioned - said to you that there were several options that he had in mind and that you might consider. And that one was that you could be terminated immediately, whereby you would receive none of the actual - a lot of the final leave entitlements, due to the serious nature you could be terminated; or you could be provided with a performance improvement plan for a month, similar to what you had been on previously, and your behaviour would be closely monitored and we would follow a formal process; and the third option was we could agree on a term of settlement.’ 4
[12] Ms Pritchard also agreed that the CEO had indicated that the first option was his original preference and that this was said in the context of the seriousness of the misconduct and the information provided to him.
[13] The applicant cross-examined Ms Pritchard about statements contained in the employers Form F3. It was her evidence that the original PIP, imposed in April 2013, included concerns of gross misconduct. She explained that the concerns involved inappropriate use of the internet and aggressive and non-cooperative behaviour. According to Ms Pritchard at the meeting on 3 December 2013 the CEO had three further incident reports concerning the applicant’s behaviour; from the Chief Financial Officer (CFO), the IT Manager and the Finance Officer.
[14] Under re-examination Ms Pritchard stated that the workplace had a policy concerning behaviour in the workplace and that the applicant was aware of the policy. She believed that his behaviour had contravened that policy and she was mindful of the impact of his behaviour on other staff who witnessed the episodes.
The Applicant’s Response
[15] In putting forward his response to the employer’s jurisdictional objection the applicant stated that not all of the information in his application (Form F2) was correct. He said that the document had been prepared by his then solicitor and he had not read it correctly before it was lodged. The mistakes concerned the reason for his argument with the CFO and the options presented to him by the CEO at the 3 December meeting. He noted that immediate dismissal for serious misconduct, although mentioned, was not presented as an option. It was also his evidence that a number of matters that he had raised with his solicitor prior to the filing of the application had not been included in that application.
[16] According to the applicant he was not given the opportunity to consider his position during the meeting on 3 December. Had he been given the opportunity he would have requested some support and raised a number of matters relevant to the accusations made against him, particularly that he had been harassed by the CIO. The applicant conceded that he did not raise this matter at the meeting on 3 December or with Ms Pritchard when he cross-examined her.
[17] The applicant disputed the validity of some of the matters surrounding the decision to subject him to a PIP in April 2013 but agreed that he was put on the PIP and that, after a month, Ms Pritchard had said he was performing exceptionally. The CEO did not provide him with feedback.
[18] Much of the applicant’s evidence concerned the reasons for his argument with the CFO over an instruction received from the Child Support Agency concerning deductions from the applicant’s pay. The CFO had indicated an intention to act on the CSA’s instruction which led to an argument with the applicant about the lawfulness of the intention. The applicant claimed to have been unaware of the change to the assessment of the amount he was to pay to the CSA. On further questioning he stated that he may have received documentation about it but didn’t read it. He did not dispute the employer’s claim that they were unaware of the change to the deduction until 15 November 2013, two months after the new deduction was to have commenced.
[19] So far as the meeting of 3 December was concerned the applicant stated that the CEO had accused him of having an aggressive exchange with the CIO, which the applicant denied. The applicant accepted that it was ‘unreasonable,’ but explained that he was stressed and he believed the CIO’s actions to be unlawful.
[20] It was the applicant’s evidence that the CEO had then put three options to him. The applicant claimed that the meeting continued as follows:
‘He went on to say that - as soon as he offered those three he went on to say that his original intention was to fire me immediately for gross misconduct, but due to considering it and the fact that he thought it would be pulled through court if he dismissed me, he wasn’t going to offer that one, but offer me the second two options. And then he said, “So you either sign what I accept you to make - to make your transition towards a new employment easier, or you accept a warning and within a month we’ll be back in here and I’ll fire you on the grounds of three warnings and you’re out,” and that I will be fired with only statutory payment of approximately $2000. During the conversation on multiple times I requested an adjournment. On every occasion, Mr Caldwell denied me an adjournment. On the one occasion I was allowed to leave the office, Judith Pritchard overruled Mr Caldwell and said that I can go out for five minutes. I asked if I could go out for a cigarette and Mr Caldwell said, “No, you won’t be leaving outside of this area.” When I returned Mr Caldwell said, “Have you made your decision?” And I said, “No, I need more time.” And he said, “No, you need to make a decision now. What’s it going to be?” And I replied, “I guess I have no choice.” And he said, “Does that mean you’re going to sign it?” And I said, “Okay. Yes, okay.” And he said, “I need to hear you see it. Are you going to sign it?” And I said, “Yes, I’ll sign it.” As he’s passing me the paper he - the document - he said, “This document says that you will not disparage or denigrate - we will not disparage or denigrate between us and that I won’t talk about this. If a future employer rings me then I will refuse to comment.” I signed the deed of release without ever reading it. Mr Caldwell and Ms Pritchard claim that I read the deed of release. I never read the deed of release. I was never given the opportunity to read it. I never negotiated any change in terms or financials. Mr Caldwell was intimidating and I was well aware that no matter what happened, I was going to be - my employment was going to cease. It was only how it was going to cease that my option was.’ 5
[21] The applicant was asked about his claim that his understanding of the offer of an additional PIP was that it would ‘ultimately and definitively’ result in his eventual termination. The applicant replied that on multiple occasions the CEO had ‘guaranteed that this would be the case’. 6 He claimed that on one such occasion he had asked the CEO ‘So I’ll be treated fairly?’ and was told “Yes, of course you’ll be treated fairly’, followed by “[B]ut we’ll be back here in a month, I just know it’.7
[22] When asked if the CEO had raised with him incidences of his behaviour, the applicant had replied that he had but that he, the applicant, had denied that there had been multiple occasions that showed that his behaviour was at the level of misconduct claimed by the CEO. He claimed that one incident raised by the CEO concerning a complaint by the Financial Officer had not been brought to his attention prior to the meeting. When shown a report about the supposed incident the applicant denied having acted towards the Financial Officer in the manner alleged. The applicant recalled an exchange with the CFO in July 2013 about his fringe benefit tax obligations but did not recall receiving a warning about his behaviour at the time. When asked if he agreed that the focus for the meeting on 3 December was the CEO’s concerns about his behaviour the applicant responded that he agreed that the CEO had brought up two occasions concerning his interaction with the Financial Officer and the CFO and had, at one stage said, ‘I have a pile of complaints about you.’ The applicant denied the claim concerning the financial officer and believed the claim concerning the CFO was embellished. He agreed that his behaviour was unreasonable but did not agree it was gross misconduct.
[23] The applicant was shown a copy of the April 2013 PIP and agreed that in a box titled ‘Areas of Concern’ the words ‘Co-operation with colleagues, attitude and hours worked, misuse of the internet &threatening behaviour’ were contained. He accepted that the PIP constituted a formal warning about threatening behaviour.
[24] When asked if he felt under duress to sign the deed when in fact he could have taken the option to remain at the company under another PIP the applicant stated that:
‘Mr Caldwell made it abundantly clear that he didn’t want me in the company. He said that his intention was originally to fire me. He said that within the month he guaranteed that I would be given a third and final warning and dismissed with only approximately $2000 of statutory payments to leave.’ 8
The exchange continued;
‘So based on your understanding of his statements, which is reflected in your testimony, you elected to take a fairly generous payout package in relation to the deed as the preferred option of the two?---I disagree that it is generous. However, I accept that I took that because I knew that within - either way I was going to lose my employment, and this was the one that allowed me to continue paying medical bills and rent.’ 9
[25] When asked if he thought the settlement of $25,000 before tax was fair and reasonable, the applicant stated that he objected to ‘being forced into accepting a settlement.’
Submissions
[26] At the conclusion of the evidence the parties were invited to make submissions. Both the applicant and the representative of the employer declined to present any submissions.
Consideration
[27] Having considered all the evidence in this matter I have reached the conclusion that the applicant and the respondent voluntarily reached a binding agreement on 3 December 2013 and, that agreement, which was reduced to writing and signed by the applicant and by an authorised representative of the respondent, is a complete bar this proceeding. In Zoiti-Licastro v Australian Taxation Office 10 the Full Bench noted:
[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.
[28] In the Federal Court decision of Australian Postal Corporation v Gorman 11 Besanko J noted as follows:
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.
34. Although the Australian Industrial Relations Commission was dealing with s 111(1)(t) of the Workplace Relations Act 1996 (Cth) in Zoiti-Licastro v Australian Taxation Office the considerations which led it to conclude that the Senior Deputy President had the power to dismiss an application on a summary basis on the ground that there was a binding settlement agreement apply with equal force under the Act.’
[29] I do not accept that the applicant was under any duress to sign the agreement offered by the respondent. On the contrary, the applicant could have accepted the second option offered and entered into a new PIP with an undertaking that the misbehaviour for which he was being disciplined would not reoccur. I note the applicant’s position that this option was not put in good faith and that the CEO had stated that he guaranteed that the applicant would be terminated within a month. I also note, however, that the applicant asked whether he would be fairly treated and was assured by the CEO that he would. In this regard I accept the evidence of Ms Pritchard that the offer was made to the applicant in the following terms “or you could be provided with a performance improvement plan for a month, similar to what you had been on previously, and your behaviour would be closely monitored and we would follow a formal process.”
[30] On the evidence I am satisfied that the applicant considered the options presented to him and decided that he would be better off financially if he were to sign the deed of release and leave his employment. The evidence supports a finding that the respondent fully complied with its obligations under the deed. The applicant received the amount of money provided for in the deed. It cannot be said that the consideration received by the applicant in return for signing the deed, thus giving up his rights to take any proceeding against his employer, was ‘illusory’.
[31] I find that there was no duress upon the applicant to sign the deed and that the deed is a complete answer to the claim.
[32] I am satisfied that the fact that the applicant has accepted the monies payable under the deed and given up his right to pursue an application such as this is sufficient to allow me to determine that the application has no reasonable prospects of success. 12
[33] In my view there would not be ‘a fair go all round’ 13 if a party to a settlement agreement, having accepted the benefit of that settlement, were permitted to ignore the agreement and pursue a claim.
[34] The application is dismissed.
Appearances:
The applicant in person.
Mr A Milliken and Ms J Pritchard for the respondent
Hearing details:
2014.
Canberra:
February 13.
1 Exhibit D3
2 Exhibit D1
3 Exhibit D2
4 Transcript PN 82
5 Transcript PN364
6 Transcript PN392
7 Transcript PN392
8 Transcript PN448
9 Transcript PN449
10 PR967544
11 Australian Postal Corporation v Gorman [2011] FCA 975
12 Ibid at [33]
13 Section 381(2) Objects of Part 3-2 Unfair Dismissal
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