Mr Gary Granas v Berkeley Challenge Pty Ltd T/A Spotless Facility Service Pty Ltd

[2015] FWC 39

[2015] FWC 39 [Note: An appeal pursuant to s.604 (C2015/1519) was lodged against this decision - refer to Full Bench decision dated 31 March 2015 [[2015] FWCFB 1795] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Gary Granas
v
Berkeley Challenge Pty Ltd T/A Spotless Facility Service Pty Ltd
(U2014/4776)

COMMISSIONER CLOGHAN PERTH, 9 JANUARY 2015

Application for relief from unfair dismissal.

[1] On 19 February 2014, Mr Gary Granas (Mr Granas or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Berkeley Challenge Pty Ltd T/A Spotless Facility Services Pty Ltd (Spotless or Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

RELEVANT BACKGROUND

[3] The Applicant was dismissed by the Employer on 28 January 2014 with immediate effect following a meeting on 21 January 2014. The meeting arose out of allegations made against Mr Granas on 8 January 2014.

[4] The Employer provided a response to the application on 20 March 2014.

[5] The application was the subject of conciliation on 3 April 2014. The Conciliator forwarded to both parties on 3 April 2014, draft terms of settlement.

[6] On 4 April 2014, Mr Douglas, General Manager, Human Resources responded with an amendment to the Conciliator’s proposed draft terms of settlement. United Voice, the Applicant’s representative, replied on the same day (4 April 2014), that the amendments “do not, in the view of the applicant, reflect the terms of settlement reached at the conciliation conference yesterday...I do not think [he] would be able to agree to the revised terms of settlement”. Mr Douglas responded to United Voice’s email on the same day (4 April 2014) which reads:

“In the course of conciliation we were advised that the Applicant had an issue in relation to the classification of his employment. No other issues were raised. It was explicitly on that basis that we reached a settlement. We now enquire as to whether there are any other issues and if so, what are they?”

[7] The next document on the Commission’s application file is correspondence from United Voice ceasing to act for the Applicant. The document is dated 5 May 2014.

[8] On 26 May 2014, the Applicant formally requested a hearing. The Applicant asserted that the agreement reached at conciliation was rescinded by Spotless and a different offer put forward which he found unacceptable. Mr Granas indicated that he was willing to attend a further conciliation hearing.

[9] On 2 June 2014, an Unfair Dismissal Team (UDT) member communicated with Mr Granas as follows:

“I refer to your correspondence [26 May 2014] in relation to the above matter in which you have indicated that you want your application to proceed to a determinative conference or hearing by Fair Work Commission (‘the Commission’).

It is not clear from your correspondence whether you have reached a binding agreement with the respondent to settle your application or whether, instead, you reached an in-principle agreement with the respondent to settle your application but no final binding agreement was reached.

If you reached a binding agreement with the respondent but consider that the respondent has not complied with it, then the Commission does not have jurisdiction to enforce your agreement. You would need to enforce your agreement in the appropriate court. If you reached a binding agreement but have changed your mind and now want to proceed with your application before the Commission, you should be aware that the respondent can enforce the agreement in a court and if you do proceed with your application before the Commission you may face an application to pay the respondent’s legal and other costs.

If you reached an in-principle agreement with the respondent then your application may be determined through a conference or hearing by the Commission.

Please confirm if you want to proceed with your application by Tuesday, 10 June 2014. You may wish to seek independent legal advice before doing so. No further action will be taken in relation to this matter until this confirmation has been received by the Commission. Confirmation and further enquiries can be made to [email protected].” (my emphasis)

[10] Four (4) months later on 1 October 2014, Mr Granas emailed the Commission as follows:

“The following request for a hearing made in May of this year has still not been responded to despite my several phone calls and further verbal explanation of the facts stated below. Could someone please contact and update me as to the current status of my case?”

[11] On 1 October 2014, another member of UDT emailed Mr Granas. The email relevantly states:

“As per our conversation, please find attached the letter [see paragraph [9]) that I spoke to you about. Please write back to this email address: [email protected].”

[12] The UDT team member’s file note of the conversation is as follows:

“TC from A - I had a lengthy discussion with the Applicant. Applicant confirmed that settlement did not take place, the agreement was amended by the R and the A did not sign it. I asked A if he received the letter sent about whether a binding settlement was reached, he did not. I resent it with a link to the WA law society (A had a query about if WA lawyers are allowed to operate no win/no fee). I confirmed As mobile number and asked him to respond to the letter asap.” (my emphasis)

[13] On 2 October 2014, Mr Granas sent the following email to the Commission:

“I wish to formally request a hearing regarding my claim of unfair dismissal against my former employer Spotless. The agreement reached at our conciliation hearing was later rescinded by Spotless and a different offer by them was put forward, one that I ultimately found unacceptable due primarily to their insistence that I agree to drop all claims of back pay including those I had been seeking for about 12 months before my employment was terminated.”

[14] On the same day, 2 October 2014, the Employer forwarded to the UDT the following email:

“In relation to the application by the applicant, the respondent counterclaims under section 399A(c) of the Fair Work Act 2009 that the application be dismissed as a settlement agreement has been concluded and the applicant has unreasonably failed to discontinue the matter. In support of this application the respondent notes the applicant has not formally raised any issues in relation to any underpayments under the dispute settlement procedure contained in the Cleaning Services Award during the period of his employment with the respondent or after its termination.”

[15] On 3 October 2014, Mr Douglas forwarded to the Applicant, correspondence which relevantly reads:

“We refer to your email of 2 October 2014 in which you applied to the Fair Work Commission for your unfair dismissal claim to proceed to a hearing. A copy of this email was forwarded to us by the Commission.

It is the position of the Company that your unfair dismissal claim was settled and that you failed to discontinue this application after the settlement agreement had been concluded.
...
Arising from the conciliation of your claim on 3 April 2014, the parties agreed to settle the matter. Draft terms of settlement were forwarded by the Commission to the parties and they were received by the Company at 6:02 PM on 3 April 2014. By email, dated 4 April 2014 at 7:10 AM the Company proposed a minor amendment to reflect the terms of the agreement reached at the conciliation, being that in the course of that conference you only raised the issue of your classification. You did not raise any other matters in relation to any alleged underpayment under the terms of the Cleaning Services Award 2010.

Notwithstanding that the Company is yet to receive an executed agreement from you.

It is the position of the Company that the matter was settled. The Company did not forward the settlement monies to you because without an executed agreement there is no authority to make the payment. At no time have you advised the Company that you did not intend to comply with the agreement reached at the conference. Nor have you filed a notice of discontinuance in accordance with the undertakings you provided.
...
On 11 July 2014 the Company received a claim from the Fair Work Ombudsman containing a number of issues alleged by you to represent an underpayment of your entitlements when employed by the Company. Notwithstanding that the claims submitted to the Fair Work Ombudsman went beyond those permitted by the agreement reached on 3 April 2014, the Company responded to those claims, to the effect there was no basis for them. The Company holds evidence that the Fair Work Ombudsman responded to you. It is reasonable to conclude you have failed to substantiate your claim. No further communication has been received by the Company from the FWO.

It is also reasonable to conclude that you have formed the opinion the FWO similarly believes your claims have no basis. For that reason you now wish to pursue the unfair dismissal claim, which as stated above was settled on 3 April 2014.

It is the position of the Company that the settlement agreement reached on 3 April 2014 between the parties is a complete answer to your claim for unfair dismissal and any attempt by you to enliven that claim will be the subject of an application by the Company that it be dismissed on the basis that it is frivolous or vexatious and/or has no reasonable prospects of success. Such proceedings will cause the Company to incur costs. If you do not discontinue the application Company will apply for costs on an indemnity basis.

We now provide you with another opportunity of executing the agreement reached between the parties. This will result in the settlement monies being paid to you. In return the Company requires that you file and serve a notice of discontinuance of the proceedings U2014/4776. The Company will raise no objection should you wish to continue to proceed with your claim with the Fair Work Ombudsman. As stated above, the Company is confident there is no basis for the claims which have been pursued by you.
...” (my emphasis)

[16] On 13 October 2014, Mr Granas responded as follows:

“Dear Mr Douglas,

Your e-mail attachment which was received has been forwarded to the Fair Work Commission who asked specifically to see it.

Keep in mind that the agreement reached at the conciliation hearing was rejected by Spotless not myself. You may see the modifications as "minor" but they are clearly changes to what was agreed upon nevertheless. I am still open to negotiations at this point otherwise the hearing will take place.”

[17] On 20 October 2014, the application was allocated to myself.

[18] On 22 October 2014, my Associate forwarded to Mr Granas an email, the relevant parts are as follows:

“In view of your apparent delay in dealing with the Commission’s correspondence and your former employer’s correspondence, the Commission is going to deal with Spotless’ application pursuant to s.399A of the FW Act in the first instance.

The hearing is set down for 1:00 pm on Monday 17 November 2014. A Notice of Listing will be sent to the parties separately.”

[19] On 22 October 2014, Mr Granas responded as follows:

“I did respond to the June 2 communication by phone, for which there are records.”

[20] It should be noted the Commission, including the UDT, has no record of any response, verbal or otherwise, to its correspondence of 2 June 2014. The only response by Mr Granas was on 2 October 2014, as outlined in paragraph [10] above.

[21] On 31 October 2014, my Associate forwarded to Mr Granas, a copy of the employer’s formal application pursuant to s.399A(1)(b) and (c) of the FW Act which sought that the Applicant’s application be dismissed. The correspondence sought a response to the Application prior to the hearing on 17 November 2014. The Applicant provided a response on 9 November 2014.

[22] At the hearing on 17 November 2014, Mr Douglas represented the Employer in its application pursuant to s.399A(1)(b) and (c) of the FW Act. Mr Granas represented himself in opposing the application.

[23] This is my decision and reasons for decision of the Employer’s application that the application be dismissed pursuant to s.399A(1)(b) and (c) of the FW Act.

RELEVANT LEGISLATIVE FRAMEWORK

[24] The relevant legislative provisions are as follows:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[25] The objects of Part 3-2 of the FW Act are set out in s.381 as follows:

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and
(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”

[26] Section 577 of the FW Act sets out the manner in which the Commission is to perform its functions:

“577Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.”

[27] Section 578 of the FW Act sets out those matters which the Commission must take into account in performing its functions or exercising its powers:

“578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

[28] There is no dispute that the Employer has properly made the s.399A of the FW Act application and the Applicant has received a copy of the application.

CONSIDERATION

Employer’s grounds for the application

[29] The relevant grounds for making the application are as follows:

“2. The Claim was the subject of a telephone conciliation on 3 April 2014, at which an agreed position was reached.

3. The terms of an agreement were forwarded to the parties on 3 April 2014.

4. It was a term of the agreement that the release provided therein “does not prevent the applicant from directly or indirectly pursuing claims, suits, demands, actions or proceedings in relation to the payment of wages and/or entitlements arising under statute, an industrial instrument or common law”.

5. The aforementioned clause was broader than was agreed between the parties. At the conference it was agreed the applicant could only pursue claims in relation to his classification under the Cleaning Services Award.

6. On 4 April 2014, John Douglas, on behalf of the respondent forwarded an amended agreement to the conciliator and the then representative of the applicant, United Voice, reflecting the matters contained in paragraph 5 hereof. No response was received from the applicant.

7. On 2 June 2014 the Fair Work Commission wrote to the applicant and advised him that the mere changing of his mind in relation to the agreement was not sufficient and that the agreement may be enforceable in a court. The applicant was further requested to provide a response as to whether he wished to proceed with his application by 10 June 2014.

8. On 11 July 2014 the respondent received a complaint lodged by the respondent with the Fair Work Ombudsman. The terms of the complaint were broader than the classification of the applicant under the Cleaning Services Award. The respondent responded to all aspects of the complaint to the effect they had no substance. No response has been received from the Fair Work Ombudsman, although the Fair Work Ombudsman did advise the respondent that it had been seeking to contact the respondent (sic) [Mr Granas].

9. On 2 October 2014, the applicant advised the Fair Work Commission to the effect that he wished to proceed with the application.

10. The respondent applies for an order that the claim U2014/4776 be dismissed because the applicant has failed to comply with the direction of the Fair Work Commission to respond to its request by 10 June 2014. Further or in the alternative the applicant has unreasonably failed to discontinue the application after a settlement agreement has been concluded.”

Applicant’s grounds for opposing the application

[30] The relevant parts of the Applicant’s response on 9 November 2014 are as follows:

“Item 2: Agreed
Item 3: Agreed
Item 4: Agreed

Item 5: The agreement presented by FWC on April 3rd exactly represented my understanding of the agreement reached during the Conciliation hearing. Mr Douglas sent me a letter dated 3 October 2014 that states I did not bring up any matters of back pay during conciliation other than those associated with my classification. Firstly, this would mean that we did not agree to leave any other back pay matters off the table. Secondly, the back pay issue that I am still pursuing is regarding my classification as a cleaner level 1 where it should have been level 2, so is within the terms suggested by Spotless regardless. I had started pursuing the back pay at least a year before my employment was terminated, so I found them taking that off the table completely unacceptable, especially in light of the fact that I had successfully fought to receive back pay on numerous occasions totalling over $3000.

Item 6: On my behalf United Voice told John Douglas I did not accept the "minor changes" he put forward in the new proposal. For me they were not "minor".

Item 7: After June 2 2014, but before June 10 2014, I spoke to Tim Smythe at FWC and told him I wished to proceed with the hearing. I also spoke later with Marianne Kay who said that FWC had "Dropped the Ball" in not scheduling a hearing for me sooner.

Item 8: The complaint lodged on 11 July 2014 was concerning my under-classification as a level 1 cleaner when I should have been classified as a level 2 cleaner...

Item 9: Agreed, However this had been communicated numerous times before, including prior to June 10 2014.

Item 10: I did respond to FWC before June 10 2014. A settlement was not concluded, as Spotless reneged on the agreement reached at the conciliation hearing.

Item 11: Spotless simply changed their mind after the conciliation, which as I have been advised is not acceptable. I have said in my most recent communication I was still open to negotiations. John Douglas representing Spotless has communicated he's not.” (my emphasis)

[31] The Employer submitted during the hearing that the clause contained in the Conciliator’s proposed agreement stated:

“The release in subclause 3.5, does not prevent the Applicant from directly or indirectly pursuing claims, suits, demands, actions or proceedings in relation to the payment of wages and/or entitlements arising under statute, an industrial instrument or common law.” 1

[32] Mr Douglas further submitted, on behalf of the Employer, that at the conciliation conference, agreement was reached with Mr Granas’ representative that the pursuit of any claims in paragraph [31] above, was limited to his classification under the Cleaning Services Award 2010.

[33] Put shortly, as part of the settlement, Mr Granas could pursue any claims against the Employer but it was limited to his classification in the Cleaning Services Award 2010.

[34] The Employer made the amendment to the Conciliator’s proposed draft settlement and returned it to both the Conciliator and United Voice. Having done so, the Employer had no further contact from either the Conciliator or United Voice. The only contact from United Voice was to advise that it ceased to act for the Applicant on 6 May 2014.

[35] I have no documentation to confirm that Mr Granas made any contact with the UDT until 1 October 2014.

[36] The Employer submitted that it received a complaint by Mr Granas from the Fair Work Ombudsman (FWO) on 11 July 2014. The complaint by Mr Granas was that he was “under classified” and should have been classified as a Level 2 cleaner and not a Level 1 cleaner. Secondly, that he had not received a Supervisor’s allowance. Thirdly, whether his employment status was part-time or full-time 2.

[37] Notwithstanding its agreement at the Conciliator’s conference to limit the pursuit of any claims by Mr Granas to his classification, the Employer responded to the FWO on all the claims made.

[38] The Employer’s last communication from the FWO was on 29 July 2014. On that occasion, the Employer was advised by the FWO that it was seeking to contact Mr Granas. Mr Granas does not dispute the Employer’s contention that it was seeking to contact him.

[39] When asked what progress he had made with the FWO, Mr Granas replied at the hearing:

“Well, again, I haven’t received direct communication or a finalised decision from him. So I don’t know where he’s leaning right now. But I believe that I will be – if I’m allowed to pursue that I – or if – unless I do come to an agreement with Mr Douglas here and now. I believe it will be successful because it’s- - -” 3

[40] The object of Part 3-2 Unfair Dismissals of the FW Act is to meet the needs of business and employees. The procedures are intended to be quick, flexible and informal. Those procedures are intended to provide a fair go all round to both parties.

[41] Section 399A(1)(c) of the FW Act commenced on 1 January 2013 and is in response to a review of Fair Work legislation. The Explanatory Memorandum to the Fair Work Amendment Bill 2012 reads at paragraph 162:

“The power to dismiss an unfair dismissal application in these circumstances [s.399A] is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This responds to Panel recommendation 42.”

[42] Recommendation 42 reads:

“Recommendation 42: The Panel recommends that the FW Act be amended to give FWA the discretionary power to dismiss applications under s.394 in circumstances where the parties have concluded a settlement agreement, or where an applicant fails to attend a proceeding relating to the application, or where the applicant fails to comply to FWA directions or orders relating to the application.”

[43] Prior to Recommendation 42, the Panel noted:

“We also consider there is merit in expanding the capacity of FWA [Commission] to dismiss applications that are totally lacking in merit, or when an applicant has failed to attend a proceeding, adhere to a settlement or comply with FWA directions.” (my emphasis)

[44] On 3 April 2014, the Conciliator forwarded to both parties an email with draft terms of settlement. The Conciliator’s email commences with the words “thank you for your participation in the conciliation, from which an agreement to settle this application was reached” (my emphasis). To complete the settlement, there is a list of steps leading to the Applicant having to file a notice of discontinuance. As part of the steps leading to a discontinuance of the application:

“Both parties are required to check that the terms of the settlement are accurate and in accordance with the agreed settlement. If the document does not reflect the agreed terms of settlement please contact me...immediately. Ensure you copy the other party into that email...”

[45] Within 12 hours, Mr Douglas had attached an amended draft agreement which particularised the changes made by the Employer. The response from United Voice was that, “in view of the applicant” it does not reflect the terms of settlement reached. Mr Douglas explained in a further email on 4 April 2014, why the amendments were made and enquires whether there are any “other issues”.

[46] After that exchange, the Employer receives no communication from either United Voice (except ceasing to act on 5 May 2014) or the Applicant.

[47] The parties were required to check the terms of the agreement as provided by the Conciliator. The Employer had the “last word” in an email on 4 April 2014 and it is reasonable to ask what was the response of the Applicant or his representative. There was no response to the Employer’s email. I can deduce from this action, that the Applicant or United Voice were inattentive or forgetful, or I can take the view that Mr Douglas’ statement of what occurred at the conference, is correct, and neither Mr Granas nor United Voice were prepared to reject his assertions.

[48] The position adopted by the Applicant is to claim, as he has continually done, that the Employer reneged on the settlement.

[49] While the Applicant “labels” Mr Douglas’ response of 4 April 2014 as reneging on an agreement, the documentation supports the view that the Conciliator asked both parties to ensure accuracy of the draft terms of the agreement. It is the Applicant who has failed to rebut or contradict the Employer’s position on what was agreed. The Applicant chose to do nothing. In such circumstances, it is open to me to draw an inference from the email from Mr Douglas, and in the absence of a response by the Applicant and United Voice, that the Employer’s position is demonstrative of the actual settlement reached at conciliation.

[50] I note that the Conciliator’s express view that an agreement “was” reached to settle the application.

[51] Mr Granas claims he made telephone contact with the UDT between 2 and 10 June 2014 4 confirming that he wished to proceed with a hearing despite the Conciliator noting that agreement had been reached. I have a file note dated 1 October 2014 on the application file from Ms Kay which states “I asked A if he received the letter sent about whether a binding settlement was reached, he did not. I resent it with a link to the WA Law Society...I asked him to respond to the letter as soon as possible”.

[52] Clearly, Mr Granas cannot have received the letter from UDT and responded verbally after 2 June and before 10 June 2014 and also not have received the letter.

[53] I am satisfied, on the material provided to the Commission, that Mr Granas received correspondence from the UDT on 2 June 2014 and did not respond until 1 October 2014. Mr Granas’ email address for the correspondence of 2 June 2014 has remained the same throughout the period of his interaction with the UDT.

[54] I note that, when provided with the same correspondence on 1 October 2014 to the same email address of 2 June 2014, Mr Granas responded within 24 hours by email (and not verbally as he alleges he had done previously).

[55] It would appear that rather than reduce the agreement to writing, Mr Granas pursued his payment/classification grievances with the FWO in July 2014.

[56] The application to the FWO does not appear to have progressed to a satisfactory conclusion for the Applicant. At most, the only submission I have is that the FWO is having difficulty in contacting Mr Granas. The next event, as I have already stated, is on 1 October 2014 when the Applicant sought a hearing in the Commission.

[57] At the hearing, Mr Granas made the submission, “I would be looking for a more significant amount than the [$]3 500 that was reached at the conciliation conference, which I agreed to and which I still agree to at this point. But if the agreement between us is going to preclude me from filing actions and drop the case with the back-pay issue with the Ombudsman...then I would be looking for a larger amount” 5.

[58] In my view, the proper course of action would have been for the Applicant, or his representative, United Voice, to respond to Mr Douglas’ email of 4 April 2014 which states unequivocally, “it was explicitly on that basis that we reached settlement”. In view of the Employer’s communication, and no response from the Applicant, I am satisfied that settlement was reached notwithstanding the “standard clause” forwarded by the Conciliator on the same day.

[59] At this time, it is appropriate to return to the Employer’s application and that is that the application should be dismissed pursuant to s.399A(1)(b) and (c) of the FW Act because the Applicant has failed to discontinue the application after a settlement agreement has been concluded.

[60] In Australian Postal Corporation v Gorman [2011] FCA 975, Bensanko J dealt with similar circumstances to these proceedings. In that case, Mr Gorman did not sign a deed of settlement and sought continuation of an application. Australian Postal Corporation (APC) sought dismissal of the application on the basis that its continued pursuit was frivolous and vexatious.

[61] At paragraphs 30 to 35, His Honour relevantly states:

“30. The applicant’s case is that there was an accord and satisfaction between it and the first respondent. It is not suggested that the agreement constituted an accord executory (McDermott v Black[1940] HCA 4; (1940) 63 CLR 161 at 184 per Dixon J (as his Honour then was)). It would not matter if the accord and satisfaction was conditional as the applicant is prepared to carry out its obligations under the agreement (Seddon N and Ellinghaus M, Cheshire and Fifoot’s Law of Contract (8th Australian ed, LexisNexis Butterworths, 2002) [4.24]).

31. 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.

32. 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.

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.

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

35. In his reasons the Senior Deputy President drew a distinction between finding that there was a binding settlement agreement and a finding that ‘there had been an enforceable contract’. It is not entirely clear what he meant by that but I take him to mean that any action to enforce the contract may need to be taken in another jurisdiction and that is almost certainly so. However, that circumstance is not a reason to conclude that FWA cannot recognise a binding settlement agreement...”

[62] Having considered all the circumstances of the conciliation conference and its immediate aftermath, I find that the parties reached an accord and satisfaction on 3 or 4 April 2014 which included agreement that the Applicant would discontinue his application when the terms had been complied with. In my view, the proper attempts of the Employer to ensure the accuracy of the settlement have been wrongly described by the Applicant. The Applicant has chosen not to formally reduce the agreement to an enforceable contract. Instead, the Applicant has chosen to make a complaint to the FWO and subsequently, is now seeking to refer the matter to a hearing.

[63] Rather than respond to the Employer’s amendment, the Applicant did nothing for nearly eight (8) weeks.

[64] After eight (8) weeks, the Applicant requested a hearing. When directed to confirm to the UDT his request, there is an absence of nearly four (4) months. Instead of responding to the UDT, Mr Granas pursues the matter with the FWO. Having what appears to be no satisfaction from the FWO, he claims that the UDT has not responded to his request. On the documentation on the Applicant’s file and the material supplied by both parties, (which is all I can rely upon), I am satisfied that the Applicant did not respond to the UDT and confirm his request for a hearing.

[65] Section 399A(1)(c) of the FW Act provides the Commission with the power to dismiss an application if I am satisfied that the Applicant has unreasonably failed to discontinue the application, after a settlement agreement has been concluded.

[66] The accord and settlement reached on 3 or 4 April 2014, as stated by Bensanko J, “extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement”. As a consequence of my finding in paragraph [62], there are resultant implications for the Employer concerning the monetary amount agreed upon as part of that settlement. There is no agreement with the Applicant, other that an amount of $3 593 payable to Mr Granas which was agreed upon as part of the settlement.

[67] In view of my finding above, in relation to paragraph 399A(a)(c) of the FW Act, it is not necessary to consider the second “limb” of the Employer’s application relating to paragraph 399A(1)(b) of the FW Act.

CONCLUSION

[68] Having considered all the material provided to the Commission, and the provisions of ss.381, 577 and 578 of the FW Act, I am satisfied that the Applicant has unreasonably failed to discontinue the application after a settlement agreement had been concluded at conciliation. Accordingly, the application is dismissed pursuant to s.399A(c) of the FW Act. An order to this effect is issued jointly with this Decision.

COMMISSIONER

Appearances:

G Granas, the Applicant.

J Douglas on behalf of the Employer.

Hearing details:

2014:

Perth,

17 November.

 1   Transcript PN98

 2   Transcript PN99

 3   Transcript PN125

 4   Applicant’s submission of 9 November 2014.

 5   Transcript PN113

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