Miro Stasiak v ISS Security

[2020] FWC 6383

[2020] FWC 6383

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miro Stasiak
v
ISS Security
(U2020/12921)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] On 27 September 2020, Mr Miro Stasiak made an application to the Fair Work Commission for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 9 October 2020, ISS Security Pty Ltd (ISS) filed their Form F3 – Employer response to unfair dismissal application (Form F3). Attached to Form F3 was a Deed of Release dated 6 May 2020 (Deed).

[3] The Deed sets out an agreement between Mr Stasiak and ISS which outlined the following:

a) Mr Stasiak commenced employment with ISS on 31 March 2008 and his employment terminated on 21 April 2020;

b) Mr Stasiak considered that the termination of his employment was unfair and intended to file an application with the Commission;

c) ISS and Mr Stasiak had reached agreement on the terms set out in the Deed;

d) ISS agreed to reinstate Mr Stasiak from 21 April 2020 until 27 September 2020 or until such time as it became ineligible for JobKeeper payments, whichever was the earlier (Reinstatement Period), at which time the employment would terminate;

e) During the Reinstatement Period, Mr Stasiak would be stood down and only receive JobKeeper payments from the Company;

f) Mr Stasiak agreed to execute the Deed and provided a copy to ISS;

g) Mr Stasiak agreed to not commence any claims in relation to the termination of the employment at the conclusion of the Reinstatement Period;

h) Mr Stasiak agreed to release, discharge, indemnify and keep indemnified ISS from any or all present or future claims concerning, arising out of or relating to the termination of the employment on 21 April 2020 and the termination of the employment at the conclusion of the Reinstatement Period, except for workers’ compensation claims and claims for superannuation;

i) Mr Stasiak gave a warranty that he had read the terms of the Deed and had received or had had reasonable opportunity to receive independent legal advice about the terms and effect of the Deed;

j) Mr Stasiak acknowledged that the benefits of being reinstatement and receiving JobKeeper payments were in full and final satisfaction of any and all contractual, statutory, award or other entitlements that he has or may have had from ISS;

k) Mr Stasiak also acknowledged that ISS could plead the Deed as a bar to any claim commenced or taken at any time by him in any jurisdiction against ISS in relation to any proceedings which arise out of, or are in any way connected with to, the termination of the employment on 21 April 2020 and the termination of the employment at the conclusion of the Reinstatement Period; and

l) The Deed was the whole agreement between the parties and replaced any prior Deed, agreement, arrangement, explanation, representation or understanding.

[4] In the Form F3, ISS outlined that it objected to Mr Stasiak’s unfair dismissal application on that basis that the Deed provided that Mr Stasiak would be reinstated for the Reinstatement Period, his employment would terminate at the conclusion of the Reinstatement Period and he would not commence any claims against ISS in relation to the termination of his employment at the conclusion of the Reinstatement Period.

[5] Having not resolved at conciliation, the matter was allocated to me for further conduct. On 16 October 2020, I issued directions for the filing and service of material and listed an arbitration conference/hearing for 26 November 2020. On 16 November 2020, ISS made application that Mr Stasiak’s unfair dismissal application be dismissed pursuant to both s.399A and s.587 of the Act (the Applications).

[6] On 17 November 2020, I advised the parties by email that I intended to deal with the applications made by ISS Security pursuant to ss.399A and 587 of the Act at the arbitration scheduled for 26 November 2020 and issued further directions as follows:

•  Mr Stasiak had until 2:00PM AEDT on Thursday, 19 November 2020 to file and serve any written submissions in response to the applications made by ISS Security under s.339A and s.587 to dismiss his unfair dismissal matter; and

•  If Mr Stasiak filed any submissions in response to the applications made by ISS Security under s.339A and s.587, ISS Security had until 4:00PM AEDT on Tuesday, 24 November 2020 to file any written submissions it wished to make in reply.

[7] As there had been no response by Mr Stasiak to these Directions by the stipulated time, I advised the parties in an email sent at 5.31pm on 19 November 2020 that I would proceed to hear the parties in relation to the Applications made by ISS Security at the commencement of proceedings on 26 November 2020.

[8] I proceeded by way of determinative conference via Microsoft Teams on 26 November 2020. Mr Stasiak gave evidence with the assistance of an interpreter. Mr Jed Moore, ISS General Counsel, gave evidence and represented ISS.

[9] Mr Stasiak confirmed he received the letter from ISS dated 21 April 2020 terminating his employment with immediate effect. He said he did not agree with that outcome and sought to have it overturned. Mr Stasiak says he consulted with Mr Rhyss Wyllie, an Industrial Officer of the United Workers’ Union (UWU).

[10] Mr Moore says that following Mr Stasiak’s termination he was contacted by Mr Damien Davie, a co-ordinator with the UWU. Mr Moore says that Mr Davie informed him that the UWU was going to file an unfair dismissal application for Mr Stasiak but wanted to discuss an alternative proposal whereby ISS would reinstate Mr Stasiak for a fixed period until 27 September 2020, during which he would receive JobKeeper payments. Mr Moore said that at this time, approximately 60% of its aviation protection officers at Melbourne Airport were stood down and receiving JobKeeper payments. Mr Moore said that ISS agreed and he then drafted the Deed to reflect what he had discussed with Mr Davie. The Deed was sent to Mr Davie on 1 May 2020. From a chain of emails produced by Mr Moore, it is apparent that Mr Davie then sent the Deed through to Mr Wyllie. There was some back and forth between Mr Wyllie and Mr Davie, during which Mr Davie informed Mr Wyllie that ISS was not inclined to adjust the terms. Mr Davie did however express the view that if the JobKeeper scheme was extended, ISS might keep Mr Stasiak on. Mr Moore confirmed that the terms of the Deed remained unchanged throughout.

[11] Mr Stasiak said he only discussed matters with Mr Wyllie and that after he signed the Deed on 6 May 2020, he gave it back to Mr Wyllie. Mr Stasiak said that Mr Wyllie agreed that he had been unfairly dismissed.

[12] I asked Mr Stasiak whether he had read the Deed. He said he did but that he did not understand it and he was not conscious of the meaning of what he was signing. Mr Stasiak later said he understood it to be a form of settlement and compromise. He said Mr Wyllie told him he would be re-employed and the proposal in the Deed was the only way he would be paid. Mr Stasiak further stated that he understood the Deed to mean he would be reinstated until 27 September 2020 and that he would receive JobKeeper payments. He also said he thought it meant there would be some hope of being kept employed and ISS apologising to him for the treatment he had received. Mr Stasiak also said that he thought ISS had agreed to reverse their decision

[13] The next exchange between the parties appears to have occurred four months later, on 9 September 2020. Mr Stasiak sent an email to Mr Nathan Schrag of ISS, as follows:

“I would like to ask you for help with my dramatic situation regarding to coronavirus pandemic.

Thank to you  I am on JobKeeper, now, till 26 September.

I would like to ask you to help me to ask You Mr Nathan  to extend the Jobkeeper from 26 September 2020.

I am in a very difficult , rather tragic situation. Because of coronavirus pandemic , plus my age, plus the restriction related to my health condition , I have no chance to find a job, in spite of my education and many  years of  experience. I am trying my best but all in vain.

It is easier to look for job as a Jobkeeper than kicked out of job.

I had a big hope , after a year , you would be able to give  me a chance to return to work. I am very close to age pension.

I feel very unhappy to sit alone at home 24/7, especially at this time of coronavirus pandemic.Because of corona virus pandemic I am not able to get any job related to my health restriction condition.

I was advised to ask You for help Mr. Nathan.

I miss my job at the Airport and my work mates very badly.

I promise I WILL  never create any personal problems to ISS Management.

I WOULD just do my duties and be happy to return to work- if you give me the last chance. I promise not to create ANY problems to ISS.

DO PLEASE BY ALL MY HEART DO  HELP ME WITH MY PROBLEMS WITH MY JOB OR WITH JOBKEEPER EXTENSION.”

[14] Mr Stasiak gave evidence that at this time he had no income, was very ill with what he described as brain cancer and had heard that the JobKeeper scheme might be extended.

[15] Ms Justine Cox, the ISS National People & Culture Manager, sent this response to Mr Stasiak’s email, also on 9 September 2020:

“Dear Miro

I refer to your correspondence below addressed to Nathan Schrag at Melbourne Airport in relation to your employment with ISS.

We understand the significant impact the Covid pandemic has had and continues to have for many of our team, particularly in Victoria at this time.

If you need assistance during this time we encourage you to access our Employee Assistance Program (EAP) provider Benestar for free and confidential counselling support, available 24/7, by contacting 1300 360 364.

In relation to your request to revisit your ongoing employment with ISS beyond 27 September, I take this opportunity to remind you that a formal agreement (Deed of Release) was executed by yourself and ISS regarding your employment on 6 May 2020.

This agreement clearly set down the obligations placed on each party to the agreement and that a period of reinstatement to your employment applied for the fixed period to 27 September 2020.

I therefore confirm that your employment will cease on 27 September 2020.

In relation to ongoing financial support beyond your termination date we recommend you contact Services Australia on Phone: 132 850 or at the following website:

”

[16] Mr Stasiak gave evidence that he terminated his membership with the UWU when he realised the effect of the Deed and he thinks he did this after he received the ISS reply email on 9 September 2020. Mr Stasiak claims the UWU misled him and says he made a mistake in signing the Deed.

[17] Mr Moore submitted that the first time ISS became aware that Mr Stasiak was challenging the Deed was when it was notified that Mr Stasiak had made the unfair dismissal application.

Findings and Conclusion – the s.587 Application

[18] I accept that English is a second language for Mr Stasiak and have noted the extent to which he relied on the assistance of an interpreter during proceedings before me. However, Mr Stasiak also made a lengthy oral submission to me in English regarding the merits of his unfair dismissal application. It covered a broad range of matters, including that he had been university educated. Mr Stasiak also was able to answer direct questions I posed spontaneously. He did so without me requiring this to occur and without he himself requiring the interpreter to translate the particular questions. As outlined above, Mr Stasiak also composed the email to ISS on 9 September 2020.

[19] I have also had regard to the signed Deed, which is very clear on its terms, and the fact that Mr Stasiak acted with the assistance of the UWU at the time it was signed and exchanged. I have noted there does not appear to have been any contact between the parties for four months after the Deed was signed. I observe from the text of his 9 September 2020 email that Mr Stasiak appears to appreciate that his JobKeeper payments would be ending and makes a request from them to be extended. The text also reveals Mr Stasiak had been looking for other work. These factors suggest that at that time, Mr Stasiak understood the effect of the Deed he had previously signed.

[20] Therefore having regard to the evidence and material before me, I am satisfied there exists a binding agreement to settle Mr Stasiak’s unfair dismissal application on the terms set out in the Deed.

[21] ISS seeks to have Mr Stasiak’s unfair dismissal application dismissed pursuant to s.587 of the Act. 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.”

[22] In Australia Postal Corporation v Gorman, 1 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. His Honour stated:

“An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.

It seems to me that the fact of an accord and satisfaction can either be raised under the Act at an ‘interlocutory’ stage and at the final hearing or it cannot be raised at all. As it is a complete answer to a claim there would be no reason why it could be raised at a final hearing but not at a preliminary stage under a section such as s 587.

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

[23] If there is a binding agreement between the parties in the context of an unfair dismissal application, the Commission has the power to dismiss it on the basis that it has no reasonable prospects of success because the binding agreement is an answer to the claim. Therefore, as I am satisfied there is a binding agreement between the parties, it is open to me to exercise my power under s.587(1)(c) of the Act to dismiss Mr Stasiak’s unfair dismissal application on the basis that it has no reasonable prospects of success. The Deed is an answer to Mr Stasiak’s unfair dismissal application. Having regard to the circumstances of this case and in particular, the compliance of ISS with its obligations under the Deed, I consider it appropriate to exercise my discretion to dismiss Mr Stasiak’s unfair dismissal application pursuant to s.587(1)(c) of the Act. An order to this effect will be issued in conjunction with this decision and will bring to an end Mr Stasiak’s unfair dismissal application.

[24] Having determined that Mr Stasiak’s unfair dismissal application ought be dismissed pursuant to s.587(1)(c) of the Act, it is not necessary for me to determine the application ISS has made pursuant to s.399A and I decline to do so.

[25] Finally, in order to obtain a finding that he had been unfairly dismissed, Mr Stasiak would have had to satisfy the Commission that he was dismissed within the meaning of s.386 of the Act. This would require a finding that Mr Stasiak’s employment was terminated on ISS’s initiative. In this case however, the terms of the Deed operated to bring Mr Stasiak’s employment to an end on 27 September 2020. This case, therefore, did not involve a termination on the employer’s initiative and this provides another basis to dismiss Mr Stasiak’s unfair dismissal application.

DEPUTY PRESIDENT

Appearances:

M Stasio on his own behalf.
J Moore for ISS Security Pty Ltd.

Hearing details:

2020.
Melbourne (via Microsoft Teams):
November 26.

Printed by authority of the Commonwealth Government Printer

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 1 [2011] FCA 975.

 2   Ibid at [31]-[33].