Mr Brett Jiggins v Toll Pty Ltd

[2014] FWC 940

[2014] FWC 940

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Brett Jiggins
v
Toll Pty Ltd
(U2013/13714)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 3 JUNE 2014

Summary: application for a remedy in relation to unfair dismissal - deed of settlement properly and knowingly executed - was deed vitiated by conduct of employer - duress - application dismissed under s.587(1)(c) of the Act.

[1] Mr Brett Jiggins (“the Applicant”) made an application on 18 September 2013 for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”). The Applicant’s former employer was Toll Pty Ltd (“the employer”).

[2] The matter was subject to a conciliation conference on 4 November 2013. The conference was unsuccessful in resolving the matter.

[3] Following the conciliation conference, the employer lodged an objection to the application. The objection was based on s.587(1) of the Act.

[4] Following the conciliation conference the file was subsequently allocated to myself and listed for hearing on 10 January 2014. Owing to illness on the part of one of the parties the hearing was adjourned and relisted for 7 February 2014.

[5] Whilst the 7 February hearing was convened, the Applicant, without any prior notice, did not attend. His representative did attend, but could not proceed in his client’s absence. The reasons for the Applicant’s conduct in this manner left a great deal to be desired, and are retained on file. There was a deal of follow-up following the Applicant’s failure to attend the hearing, and whether the conduct, for example, would be subject to an application under s.399A of the Act. I will return to this matter later in this decision.

[6] That said, the hearing ultimately was rescheduled for 26 May 2014 (after some difficulties further determining an agreed date).

Legislative provisions

[7] 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.

[8] Specifically, the employer claimed that the application had no reasonable prospect of success (s.587)(1)(c) of the Act). The reason for this was that the Applicant was said to have signed a deed of settlement at the time of the termination of his employment which resolved all matters between the Applicant and his former employer.

[9] The Commission authorities indicate that a deed of release, knowingly and properly executed, serves as a bar to an application for a remedy in relation to an alleged unfair dismissal. Thus it was commented upon by the Full Bench in Stork Electrical Proprietary Limited v Le Good (though in terms abstracted from the case at first instance) that an application under s.170CE of the Workplace Relations Act 1996 (in relation to an unfair dismissal remedy) could not be proceeded with where a deed of release had been properly executed:

[36] We agree with the proposition inherent in the appellant's submission concerning the deed of release that the Commission should not permit a party to a s.170CE application to depart from a deed of release which has been knowingly and properly executed. 1

[10] And then by the Full Bench in Zoita-Licastro v Australian Taxation Office:

[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.

[25] [...] As we have endeavoured to show, where the Commission dismisses an application at a preliminary hearing because the respondent has demonstrated a complete answer to the application, it is incorrect to say that the Commission has not discharged its obligation to hear the case. 2 [my emphasis]

[11] The Full Bench proceeded to uphold the decision of the Commissioner at first instance to dismiss the application under then s.111(1)(t) of the Workplace Relations Act 1996.

[12] It is the case, too, that s.587 of the Act is couched in terms sufficiently broad to empower the Commission to dismiss an application where an accord and satisfaction provide a complete answer to the claims and otherwise bars further proceedings by its own terms. In this respect the Court has commented 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.

[...]

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 – to in 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.

Although the Australian Industrial Relations Commission was dealing with s.111(1)(t) of the Workplace Relations Act 1996 (Cth) in Zoita-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. 3

The current circumstances

[13] The Applicant acknowledges that he accepted a redundancy in the terms indicated below. However, he maintains that evidence later emerged to suggest “that the role [he] had vacated is now being done by others in the company”.

[14] The Applicant went on to claim that “while I am happy with the redundancy payout that was given to me, I do believe that this was done pre-emptively and that I would normally still be earning a salary.”

[15] The Applicant’s employment was terminated on 28 August 2013 for reasons of redundancy. Prior to that date, on 22 August 2013, the Applicant entered into a deed of release with the Respondent.

[16] The deed was duly executed by the parties.

[17] Paragraph 5(a) of the deed requires the employee to acknowledge and agree that he has had a reasonable opportunity to get independent legal advice about the agreement covered by the deed. The Applicant gave evidence on this point at the hearing, as will be referred to below.

[18] The terms of that deed acknowledged the payment of the Applicant’s gross redundancy (of $17,316.35).

Under the heading, “The employee releases Toll from claims etc”, the deed provides (at paragraph 2.1 thereof) that:

The Employee releases Toll, its related bodies corporate and each of its and their officers, employees, agents and representatives from all claims, and from all liability, to the Employee arising directly or indirectly out of the employment with Toll or any of its related bodies corporate or the termination of the employment.

[19] Paragraph 2.2 of the deed provides:

This release covers all claims and liability, however described and however arising. It covers claims by, and liability to, anyone who claims through the Employee. It covers claims and liability existing or that may arise in the future. However, it is not intended to cover any claims or liability in respect of workers’ compensation under applicable legislation.

[20] Paragraph 5(b) of the deed provides:

That Toll and its related bodies corporate may use this deed, including as a bar, against the Employee in any court or other proceedings against Toll or any of its related bodies corporate; [...].

[21] Paragraph 7 of the deed makes clear that the benefit of the deed extends to Toll itself and to each of Toll’s related bodies corporate, and each of the officers employees and agents of Toll and of its related bodies corporate.

[22] It is clear that the deed serves as a bar to civil proceedings such as those under the Act.

[23] The deed, on its face, provides a complete answer to the application for relief. Its terms so provide.

Consideration

[24] The issue here is not whether the deed was executed by the Applicant or that it contained the terms that I have set out above, amongst others. The argument concerns whether there is evidence that the deed of release executed by the parties is vitiated by reason it was entered into by the Applicant when he was under duress, or otherwise subject to co-worker and or some other species of unconscionable conduct carried out by Toll.

[25] In effect, the argument went that if the deed was entered into under coercion or economic duress et cetera, then it could not be relied upon by Toll as a complete answer to the claim or as a bar to further proceedings because the deed was vitiated.

[26] None of this was mentioned in the Applicant’s Form F2, which comprised his original application for an unfair dismissal remedy. But they were matters that were pressed subsequently when an objection was raised in the context of the executed deed as referred to above.

[27] The Applicant’s evidence was straightforward. His evidence was that he was informed by the HR Manager, Ms Vanessa Dwyer, more or less midway over the course of the four-week period from the notification of his redundancy to the cessation of his employment, that:

Unless you sign the deed we provide, we will not be paying you your annual leave and any other entitlements.

[28] The Applicant went on to claim that:

The only reason that I signed a deed was because of [the] statements to me, including [the] threat that the Company was going to withhold all payments to me if I did not sign the deed.

[29] Ms Dwyer was the HR manager who the Applicant claimed had made a threat to withhold his lawful entitlements.

[30] Ms Dwyer gave evidence that she would never threaten to withhold a lawful entitlement to an employee, for reasons such entitlements cannot be withheld.

[31] Ms Dwyer is experienced in redundancy processes and procedures and was responsible for the redundancy process at Toll at the time. She was no longer an employee of Toll at the time of these proceedings, I should add. Ms Dwyer did not volunteer a written statement, either, and a summons was necessary to ensure her appearance.

[32] Ms Dwyer’s evidence was candid and professional in tone. It betrayed none of the hallmarks of fabrication.

[33] It strikes me as being most improbable that Ms Dwyer would ever say what the Applicant claims that she did. The surrounding circumstances lend support to this conclusion. I set out the surrounding circumstances below.

[34] The Applicant executed the deed and appears to have made no statement of concern or expressed any regret or hesitation of any kind to either Ms Dwyer or his day-to-day manager Ms Newman. Ms Newman was asked to witness the Applicant executing the deed and gave evidence that even at that time, the Applicant made no comment to her that in any way reflected a negative perception of the circumstances.

[35] Ms Newman also conducted the exit interview with the Applicant. The Applicant made no mention to Ms Newman at that time of any concerns he had with the execution of the deed.

[36] It is difficult to believe that if the apparent threat was made two weeks into the four-week redeployment or transition process that the Applicant would not have manifested his concerns in some manner or other to Ms Newman or Ms Dwyer or otherwise have created some other expression of anxiety - perhaps by way of e-mail complaints to other managers.

[37] There is no evidence of this kind brought to support the Applicant’s case. I have already mentioned above that the Applicant made no reference to such conduct in his original application.

[38] Further, I would ordinarily expect that such evidence would be in existence because of other reasons as well. The evidence in this matter demonstrates that the Applicant was fully engaged in the redundancy process and asked questions and raised concerns about such matters as to whether or not he was entitled to a long service leave pro rata payment (given that he had periods of service in New South Wales and Queensland). The Applicant was critically disposed towards his employer’s decision-making. The Applicant also acknowledged that he was a person who was empowered in relation to his decision making.

[39] Despite all of this, there is no evidence of any material kind that the Applicant complained of duress or unconscionable conduct in relation to the deed. The Applicant’s evidence endeavoured to suggest that he may have raised concerns perhaps with other persons in other conversations or discussions, but nothing material emerged from these claims. Given the Applicant’s disposition as revealed in the evidence. I consider it improbable that he would have accepted being informed two weeks into the redundancy process that he had to sign a deed of release to obtain his lawful entitlements, but not have cavilled with that demand in any open manner.

[40] I should add that there is evidence about the Applicant’s state of mind. That evidence was that that Applicant was happy with the payout he received, and considered that it was generous, and at various times evidenced a positive state of mind, including at the point at which his employment ceased with Toll. There were contemporaneous e-mails tendered as evidence in this respect.

[41] The Applicant made other claims that he did not take possession of the deed until the third week of the transition process and had limited opportunity to obtain legal advice. Equally so however there was unchallenged evidence that the transitional process was not fixed, and that the employer manifested some willingness to provide for flexibility. The Applicant, therefore, could have asked for time to obtain legal advice, but he does not appear to have done so. If he had been exposed to coercion or threat as he claims, it would be expected that he may have agitated this matter. But he did not.

[42] The Applicant also claimed that he was denied an opportunity to obtain legal advice during working hours. Nothing material turns on this claim, even if true.

[43] When my view of the direct evidence is weighed along with the surrounding evidence, I conclude that the Applicant was not subject to any duress etc in relation to the execution of the deed of release.

Conclusion

[44] Because the Applicant had knowingly and properly executed a deed of settlement that embodied a comprehensive release against all further actions against his employer (bar in respect of workers compensation matters), the application must have “no reasonable prospects of success”, as a consequence.

[45] There is no evidence that the Applicant was subject to some measure of unconscionable conduct that vitiated the deed of settlement. On the evidence that I have heard, the Applicant knowingly entered into a deed for his financial benefit, and in so doing waived his rights to further action against his employer.

[46] The objection to the application proceeding under s.587(1)(c) of the Act is upheld and the application is dismissed.

Further s.587 matters

[47] I add further that two other incidental matters were raised under s.587 of the Act as a precursor to the more substantive argument above.

[48] The first of these concerned the fact that the Applicant failed to attend a hearing set down for the determination of the s.587 application on 7 February 2014. I referred to this matter earlier.

[49] His reasons for not attending the proceedings were provided subsequently and these reasons were particularly thin. It was not without some anxiety on my part that I did not cause the application to be dismissed at that time at my own motion. Toll did not make an application under s.399A of the Act as it may have (and as it was advised that it could).

[50] A further argument was raised by Toll that I should not accept the Applicant’s materials because they were not filed in compliance with the directions timetable and were in fact filed after the Respondent had itself filed its materials. The Respondent was put at a disadvantage in numerous respects because of this development.

[51] Again, however, despite a growing measure of anxiety, I nonetheless have decided to hear the Applicant’s case. His submissions ultimately were of very narrow compass and I reached the view that Toll’s case was not irreparably harmed by the Applicant’s conduct. This was particularly so as an opportunity was provided to allow for further evidence in chief at the outset.

[52] In the end, it was perhaps a more serious development that the Applicant led additional evidence (beyond that eventually filed) following the Respondent’s evidentiary case, which of course did not provide an opportunity for response by the Respondent from its witnesses.

[53] Given what I have decided above, however, as lamentable as these developments were, they were not fatal to the Respondent’s case, and have been overlooked in these particular circumstances.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr P. Cioccarelli, for the Applicant

Ms K. Alam, of the Respondent

Hearing details:

Brisbane (by video link)

2014

7 February

&

26 May

 1   Dec 747/99 M Print R6813, 12 July 1999.

 2   PR967544, 25 January 2006.

 3   Australian Postal Corporation v Gorman [2011] FCA 975 at 31-34.

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