Mietek Najda v Fuji Elevators Australia Pty Ltd

[2021] FWC 878

[2021] FWC 878

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mietek Najda
v
Fuji Elevators Australia Pty Ltd
(U2020/13563)

COMMISSIONER WILSON MELBOURNE, 1 MARCH 2021

Application for an unfair dismissal remedy – binding settlement agreement reached –application dismissed pursuant to s.587.

[1] Mr Mietek Najda (the Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] I have determined to dismiss the application pursuant to s.587(1)(c), on account of there being a binding settlement agreement which extinguishes the original claim such that it has no reasonable prospects of success. The reasons for this decision follow.

Background

[3] The application was filed in the Fair Work Commission (the Commission) on 13 October 2020.

[4] The matter was listed for a Member Assisted Conciliation before me on 26 November 2020. At the Member Assisted Conciliation the parties agreed to resolve the matter on the basis of a confidential settlement.

[5] The Respondent provides signed Terms of Settlement to the Commission and to the Applicant on 30 November 2020. The Applicant, through his representative the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia provided signed Terms of Settlement to the Commission and the Respondent on 4 December 2020.

[6] Following receipt of the signed Terms of Settlement from both parties I set aside the filing Directions and vacated the hearing dates.

[7] Given the length of time since the signing of the Terms of Settlement my Chambers invited a Notice of Discontinuance from the Applicant on 14 January 2021. No response was received.

[8] A further request for a Notice of Discontinuance was sent to the Applicant on 28 January 2021. Again, no response was received.

Consideration

[9] Section 587 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.

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.”

[10] In Masters v Cameron the High Court of Australia has found a binding contract will exist:

“Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three cases. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution.” 1

[11] I am satisfied, based on the copy of the executed Terms of Settlement, that the parties reached agreement by way of a binding settlement and that the agreement was in the nature of the second type discussed in Masters v Cameron. The agreement was immediately binding and reflected in the Terms of Settlement document provided to the Commission.

[12] The Federal Court has considered that the Commission has the power to dismiss an unfair dismissal application under s.587where a binding settlement agreement exists. That is because the binding settlement agreement extinguishes the pre-existing cause of action and the continued pursuit of the 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 As can be seen from this, 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. 

Conclusion

[13] I am satisfied that a binding settlement agreement was reached between the Applicant and Respondent and that the terms of that agreement have been executed. I am persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss Mr Najda’s 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR727098>

 1   Masters v Cameron [1954] 91 CLR 353, [360].

 2   Australia Postal Corporation v Gorman [2001] FCA 975; see also Curtis v Darwin City Council[2012] FWAFB 2021.