Mladen Stupar v Australia Postal Corporation T/A Australia Post

[2015] FWC 1090

[2015] FWC 1090 [Note: An appeal pursuant to s.604 (C2015/1971) was lodged against this decision - refer to Full Bench decision dated 22 April 2015 [[2015] FWCFB 2316] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mladen Stupar
v
Australia Postal Corporation T/A Australia Post
(U2014/4265)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 16 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] Mr Mladen Stupar alleged that the termination of his employment by Australia Post was unfair.

[2] It is not disputed that Mr Stupar participated in a conference convened by a member of the Commission on 16 June 2014. Mr Stupar was provided with an interpreter at the conference. There is also no dispute that Mr Stupar signed terms of settlement. The terms of settlement provided that Mr Stupar would be paid an amount of money and that “this is a once and for all settlement of all matters arising from the course of the Applicant’s employment and the cessation of the Applicant’s employment with the Respondent.”

[3] The terms of settlement was signed by Mr Stupar and the interpreter and Australia Post.

[4] It is also not disputed that Mr Stupar was paid, on 20 June 2014, the monies payable under the terms of settlement. While there was some question about whether Mr Stupar received a statement of service that was not pressed at the hearing.

[5] On 24 May 2014, Mr Stupar made a complaint to the Australian Human Rights Commission (AHRC) about what had occurred during his employment. Australia Post was provided with a copy of the complaint on 13 June 2014 and on 18 June 2014, Australia Post advised the AHRC of the terms of settlement. On 7 July 2014, the AHRC terminated the complaint on the basis the parties had not agreed to participate in a conciliation conference or otherwise resolve the matter. Mr Stupar was advised that he could apply to the Federal Court or Federal Circuit Court. He was advised that he had 60 days to make the application.

[6] On 9 July 2014, Mr Stupar wrote to the Commission seeking a meeting with the Commissioner who had conducted the initial conference, because he said he had been deceived. On 3 September 2014, a private conference was conducted by Vice President Catanzariti but the dispute remained unresolved.

[7] On 27 October 2014, Mr Stupar made an application, by letter, for the Commission to hear and determine whether the terms of settlement should be set aside.

[8] Mr Stupar claimed that he did not understand that the document he signed would prevent him taking other action against Australia Post and that he had been told by the interpreter that he was only settling his unfair dismissal claim.

[9] On 1 December 2014, Australia Post applied to have Mr Stupar’s application dismissed under section 587(1)(c) of the Fair Work Act 2009.

[10] The hearing proceeded on the basis that if Australia Post’s application was successful that the matter would be resolved.

[11] Mr Stupar gave evidence about the conciliation conference. The offers to settle and the responses to those offers were conveyed to the parties by the Commissioner. The parties were in separate rooms. Mr Stupar gave evidence that he signed the terms of settlement. Mr Stupar gave evidence that he asked the interpreter to “consult with the lady who was presiding there to check whether I was signing anything that preclude me from chasing those people who not only destroyed my life ... ” 1.

[12] Mr Stupar gave evidence that he was told he was “signing just what I can get from this institution. That is, the payment for the unfair dismissal” 2. To the question “did you agree not to pursue the unfair dismissal claim?” Mr Stupar relied “No, never. No way. I would never do that, nor will I do that.”3 When the question was rephrased, Mr Stupar still denied agreeing to settle his unfair dismissal claim.4

[13] Mr Stupar later said he was told that he was signing for a payment for the unfair dismissal. 5

[14] Mr Stupar said they agreed not to disparage each other; the dismissal would become a resignation; and he would receive a good reference which he said he did not receive. He also reiterated that he was told that he could pursue “all avenues regardless of the signature.” 6 He said he was told this by the interpreter.7

[15] Mr Stupar sought to tender the transcript of a conference conducted by the Vice President Catanzariti. The transcript was marked “transcript in confidence” and Australia Post objected to its tender.

[16] I determined not to admit the passages sought to be relied upon by Mr Stupar and I gave my reasons in transcript at the time. 8

[17] Mr Stupar did not call the interpreter to give evidence about what she said to him at the conciliation conference.

[18] Australia Post did not call any evidence and relied upon the signed terms of settlement. Australia Post submitted that it was clear that Mr Stupar intended settling his unfair dismissal claim and Australia Post had complied with its obligations under the terms of settlement. It did not resile from its position that the signed agreement was a legally binding document but submitted that it did not need to establish this for its submission to be upheld. Australia Post submitted that the Commission did not have the jurisdiction to determine the question about whether the agreement was a legally binding document as that would involve the Commission exercising judicial power which it cannot do.

[19] Australia Post relied upon the decision of the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and Ors 9 to support its contention that Australia Post was entitled to rely upon the signature of Mr Stupar and that none of the exceptions referred to in Alphapharm applied.

[20] The High Court in Alphapharm held that absent misrepresentation or fraud or some other special circumstances a person will be bound by the document the person signs.

[21] Australia Post submitted that there was no misrepresentation by it.

[22] Further Australia Post submitted that Mr Stupar had given no evidence about his ability to read and understand English. It submitted that Mr Stupar corresponded with the Commission numerous times in English.

[23] Australia Post submitted that Mr Stupar knew that he was signing a settlement agreement with Australia Post. It submitted that Mr Stupar had not established fraud, duress, misrepresentation or non est factum. It submitted that Mr Stupar subjective post fact views about what he signed is irrelevant.

[24] Mr Stupar submitted that he did not understand the terms of settlement to be what was reflected in the document. It was submitted that Mr Stupar’s evidence was inconsistent as “he either understood that he was releasing from the unfair dismissal claim only or, on the contradictory evidence, he was offering to release from nothing.” 10 It was put that he never agreed to release anything more than his unfair dismissal claim.

[25] It was submitted that there was no oral agreement between the parties.

[26] Mr Stupar relied upon the principal point of “non est factum” to support his contention that he should not be held to the document he signed.

[27] He relied upon the decision of the High Court in Petelin v Cullen 11 and a decision of the Industrial Court of Australia in Cawthray v Stinson Nominees Pty Ltd.12

[28] In Petelin, dealing with an illiterate person who signed a document the Court said in relation to circumstances in which a person will not be held to the document signed:

“The class of persons who can avail themselves of the defence is limited. It is available to those who are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is available to those who through no fault of their own are unable to have any understanding of the purport of particular documents. To make out the defence a defendant must show that he signed the document in the belief that it was radically different from what it was in fact and that, at least as against innocent persons, his failure to read and understand it was not due to carelessness on his part. Finally it is accepted that there is a heavy onus on a defendant who seeks to establish the defence.” 13

[29] It was submitted that Mr Stupar did not understand what he was signing but Australia Post wasn’t aware of this and hence they are an innocent party. However it was said that Mr Stupar was not careless. It was submitted that Mr Stupar asked the interpreter 20 times whether he was releasing more than the unfair dismissal claim.

[30] It was submitted that that Mr Stupar could not read and write English.

[31] It was submitted that there was no oral agreement between the parties and therefore no Masters v Cameron issue arose.

[32] It was accepted that if the matter proceeded Mr Stupar would need to repay the monies already paid to him.

[33] As a result of the submissions of Australia Post, that there was no evidence that Mr Stupar could not read and understand English, I permitted Mr Stupar to be recalled. Mr Stupar gave evidence that he could understand everyday conversation but not if it were more difficult. He cannot read English. He gave evidence that in legal proceedings he had to use an interpreter. It was his evidence that his son assisted him with writing in English.

[34] Mr Stupar was employed as a mail officer. He accepted that he was required to read addresses in English, though he took the view that destinations are the same in all languages. He also accepted that communication from his supervisors was in English thought he said there was no communications. Mr Stupar has lived in Australia for 12 years.

[35] In relation to two letters written to the Commission, Mr Stupar said that first he wrote the letters in Serbian and his son translated them into English and then he copied them into English and sent them.

[36] Australia Post submitted that Mr Stupar’s job was carried out in English. Training and discussions were in English. It was submitted that the letters show a level of understanding and command of English that goes beyond that applying in Petelin.

[37] I accept the submissions of Australia Post that the Commission is not empowered to set aside the agreement reached between Mr Stupar and Australia Post. The question of whether the agreement is legally enforceable is not a matter for the Commission.

[38] The Commission has the power to dismiss an application if it has no reasonable prospects of success.

[39] In Australia Postal Corporation v Gorman 14, Besanko J said as follows:

“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.” 15

[40] His Honour went on to say:

“a valid accord 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.” 16

[41] Notwithstanding his employment as a mail officer, I am satisfied that Mr Stupar’s understanding of English is limited.

[42] However this is not a case where Mr Stupar was required to read and understand English, as he had the benefit of an interpreter. There was no evidence that he was not able to understand what was interpreted.

[43] I am not satisfied on the evidence of Mr Stupar that he was not aware of what he was signing. Mr Stupar’s evidence was inconsistent. 17 Given Mr Stupar at this hearing had the benefit of an interpreter, he at times did not listen to the questions asked and did not answer the questions asked.18

[44] There was no evidence given by the interpreter about what she said to Mr Stupar. I am unable to find on the basis of Mr Stupar’s evidence that the interpreter did not interpret the clauses of the terms of settlement as written. The interpreter signed the terms of settlement and attested that the document was interpreted by her. The relevant words in the terms of settlement are not complex. It says that this is a once and for all settlement of all matters arising from the course of employment. There is no evidence on which I could find that the interpreter did not translate these words.

[45] The role of an interpreter was to interpret for Mr Stupar. It was not her role to answer his legal questions.

[46] I did not find Mr Stupar to be a reliable witness as he was not clear, even at this hearing, about what he agreed to.

[47] I am unable to find on the basis of Mr Stupar’s evidence that the interpreter told him that the terms of settlement meant that he could take other action about his employment against Australia Post.

[48] His own Counsel submitted that there were two conclusions I could reach from Mr Stupar’s evidence. One, that he understood that he was settling his unfair dismissal claim or he was settling nothing. I do not accept that Mr Stupar thought that Australia Post would pay him $8000 for nothing. Mr Stupar understood that he was settling his unfair dismissal claim. 19 Whether the terms of settlement signed by Mr Stupar exceeded what was agreed is not a matter for the Commission to determine. Had Mr Stupar proceeded with his claim under the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 that question would have been resolved by the Court.

[49] In this case I accept that Mr Stupar intended to settle his unfair dismissal claim. I am satisfied that he has been paid the monies in accordance with the terms of settlement. Further I am unable to conclude that he, at the time he signed the deed, had not had the terms of the settlement translated for him.

[50] I am not satisfied on the material before me that I should ignore the signed terms of settlement and permit this matter to proceed.

[51] I am therefore satisfied on the material before me that Mr Stupor’s claim has no reasonable prospects of success as he agreed to settle his unfair dismissal claim and he has received the benefits of that settlement. Mr Stupar’s application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

N. Shaw for the Applicant.

R. Bernasconi for the Respondent.

Hearing details:

2014.

Melbourne:

3 September and 2 December.

 1   Transcript PN 282

 2   Ibid PN 294

 3   Ibid PN 283-284

 4   Ibid PN 285-286

 5   Ibid PN 294

 6   Ibid PN 302

 7   Ibid PN 311

 8   Ibid PN 355

 9 [2004] HCA 52

 10   Transcript PN 395

 11 (1975) 132 CLR 355

 12 [1995] IRCA 693

 13   Pelelin op cit at pages 359-360

 14 [2011] FCA 975

 15   Ibid at [31]

 16   Ibid at [33]

 17   Transcript PN 395

 18   Ibid PN 281-282, 289-290

 19   Ibid PN 396

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