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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 940
Decision Date: 3 JUNE 2014

CaseChat Overview and Summary

In Mr Brett Jiggins v Toll Pty Ltd, Mr Jiggins sought a remedy in relation to his unfair dismissal from Toll. The dispute centred on whether a deed of settlement, executed by Mr Jiggins, was properly and knowingly executed or if it was vitiated by the conduct of Toll. Specifically, Mr Jiggins claimed that the deed was entered into under duress, and therefore, it was not valid. The case was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues before the court were whether the deed was indeed entered into under duress and, if so, whether this vitiated the deed to the extent that it should be set aside. The court had to consider the nature of the duress, if any, and whether it was sufficient to invalidate the settlement agreement. Additionally, the court examined the knowledge and voluntariness of Mr Jiggins in executing the deed.

The court found that there was no duress by Toll that invalidated the deed. It held that Mr Jiggins had not demonstrated that he was coerced into signing the deed, and that he was fully aware of his rights and the consequences of the settlement. The court emphasised that the duress must be of a significant nature to render the contract voidable. Since Mr Jiggins could not prove such duress, the court dismissed the application. Under section 587(1)(c) of the Fair Work Act 2009, the court had the discretion to dismiss the application if it was satisfied that the applicant had not met the necessary threshold for relief.

The final orders of the court were that the application for a remedy in relation to the unfair dismissal was dismissed. The deed of settlement was upheld, and no further relief was granted to Mr Jiggins.

Orders