Monica McSweeney v Yorta Yorta Nation Aboriginal Corporation T/A Yorta Yorta Nation

[2016] FWC 8950

[2016] FWC 8950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Monica McSweeney
v
Yorta Yorta Nation Aboriginal Corporation T/A Yorta Yorta Nation
(U2016/9612)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 DECEMBER 2016

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

[1] On 20 July 2016, Ms Monica McSweeney made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The matter was listed for Conciliation on 24 August 2016, however, it did not resolve at that time. The matter was then listed for Jurisdiction/Arbitration Hearing and directions were issued.

[3] On 18 September 2016, Ms McSweeney wrote to the Conciliator who conducted the Conciliation on 24 August 2016, advising that her personal situation prevents her from continuing with the matter. She asked whether the counter-offer made by Yorta Yorta Nation Aboriginal Corporation (YYNAC) could be accepted as full and final settlement.

[4] On 19 September 2016, Ms McSweeney wrote to the Commission asking that it contact the YYNAC on her behalf to ascertain if the offer made by the YYNAC at Conciliation was still available. Ms McSweeney said “I am happy to take that offer at this time.” The Commission forwarded Ms McSweeney’s email to the YYNAC.

[5] On 28 September 2016, the YYNAC advised the Commission via telephone that its Board had provided correspondence stating it agreed to settle. An email was then sent to both parties attaching a blank version of standard terms of settlement and procedural advice on completing them.

[6] On 5 October 2016, the YYNAC sent its offer in the format of terms of settlement. This was forwarded to Ms McSweeney who responded to the Commission as follows; “I appreciate your time in this matter. Is it possible that this email to you can count as my signature/consent that I am satisfied with the terms and agree to all clauses itemized? I have no computer nor a printer. Kind regards Monica McSweeney.”

[7] On 6 October 2016, the Commission suggested to Ms McSweeney that she go to a library where she could print the terms of settlement, sign them and then scan them in order to provide a copy to the YYNAC. Later that day, Ms McSweeney sent to the Commission executed terms of settlement which were forwarded to the YYNAC.

[8] On 21 October 2016, attempts were made to contact both parties to follow up on the settlement of the matter. In the case of Ms McSweeney, the message left included a request that she file a Notice of Discontinuance if she had received the settlement monies. This telephone call was followed by an email to Ms McSweeney to similar effect. A further phone call to Ms McSweeney was made on 31 October 2016.

[9] There having been no response to any of these attempts, an email was sent to Ms McSweeney on 15 November 2016 with a letter requesting she contact the Commission by close of business on 22 November 2016 in relation to filing a Notice of Discontinuance. The letter advised that if there was no response, a decision would be issued without further notice.

[10] On 30 November 2016, another attempt to contact Ms McSweeney via telephone was made and a voicemail was left seeking a return call.

[11] On 13 December 2016, the YYNAC confirmed with my chambers that it has performed all its obligations under the terms of settlement. It also copied the Commission into correspondence with Ms McSweeney, attaching the signed terms of settlement.

[12] A final attempt to contact Ms McSweeney via telephone was made on 13 December 2016, however the call went straight to a voicemail service.

Consideration

[13] I am satisfied a binding agreement to settle Ms McSweeney’s application exists. Ms McSweeney has filed in the Commission terms of settlement signed by her. The YYNAC has confirmed that its obligations under the terms of settlement have been performed and has also provided a copy of the terms of settlement executed by both parties to the Commission.

[14] 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.2

[15] 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.” 3

[16] 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. As I am satisfied that in the circumstances before me, there is a binding agreement between the parties which has extinguished the Application, I consider it appropriate and open to me to 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.

DEPUTY PRESIDENT

 1 [2011] FCA 975.

 2 Ibid at [31].

 3 Ibid at [33].

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