Mr Kevin ColemanvLogic Australia Pty Ltd T/A Comcork Manufacturing Pty Ltd

[2012] FWA 7659

[2012] FWA 7659

FAIR WORK AUSTRALIA

DECISION AND DIRECTIONS

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

Mr Kevin Coleman
v
Logic Australia Pty Ltd T/A Comcork Manufacturing Pty Ltd
(U2011/14841)

COMMISSIONER LEWIN MELBOURNE, 7 SEPTEMBER 2012

[1] In this matter Mr Kevin Coleman has made an application for relief in relation to his alleged unfair dismissal by Logic Australia Pty Ltd, trading as Comcork Manufacturing Pty Ltd (herein referred to as Logic), under s.394 of the Fair Work Act 2009 (the Act).

[2] The application was made on 21 December 2011. Subsequently a conciliation conference was conducted by telephone on 25 January 2012. Terms of settlement were agreed at the conciliation conference and those terms are exhibited before the Tribunal in this matter.

[3] Logic has now applied for the dismissal of Mr Coleman’s application under s.587 of the Act. The provisions of s.587 are set out below:

‘587 Dismissing applications

(1) Without limiting when FWA may dismiss an application, FWA 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.

(2) Despite paragraphs (1)(b) and (c), FWA 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) FWA may dismiss an application:

(a) on its own initiative; or

(b) on application.’

[4] The terms of settlement were not performed by Logic as provided for. Mr Coleman contacted Logic in pursuit of the non-performance of the terms of settlement, several months after the time required for performance of those terms.

[5] Logic apologised for what it says was an administrative error which led to non-performance of the terms of settlement. Logic immediately sought to perform the settlement and pay outstanding monies prescribed by the terms of settlement.

[6] Mr Coleman then refused to accept payment of the amount of money provided for by the terms of settlement.

[7] Logic continue to propose to pay Mr Coleman the amount owed and in addition an amount of interest.

[8] Mr Coleman refuses to accept Logic’s attempts to perform the terms of settlement and the consideration in the form of an amount of interest.

[9] Mr Coleman gave evidence that he now wishes to prosecute his application and that he was dissatisfied with the Fair Work Australia conciliation process as he considers it lacked objectivity. It was Mr Coleman’s evidence that he reached this view, at least by influence, as a result of reading opinions expressed in The Australian newspaper.

[10] I have decided that should Logic pay to Mr Coleman an amount of money made up of the gross amount of the monies due under the terms of settlement and an amount of interest in manner prescribed below, in Directions which follow, I will dismiss the application made by Mr Coleman.

[11] In my view, on the evidence before me, Mr Coleman and Logic reached accord and satisfaction in relation to the subject matter of the application lodged under s.394 of the Act on 25 January 2012 during the conciliation conference. The written terms of settlement were subsequently executed by Mr Coleman reflect that satisfaction and accord. I am not persuaded by anything put by Mr Coleman that the terms of settlement should not stand.

[12] Opinions published in newspapers are not a convincing reason to displace satisfaction reached during conciliation. Moreover, there is no evidence before me that the conduct of the conciliation miscarried at law. It is not necessary that I reach the conclusion that the s.394 application is not made in accordance with the Act, is frivolous or vexatious or has no reasonable prospects of success in order to dismiss the application. 1 However, in my view, for the reasons stated immediately below my reasons for dismissing the application include a conclusion that the application has no reasonable prospects of success because the terms of settlement executed by Mr Coleman constitute an insurmountable obstacle to the success of the application beyond those terms.

[13] In my view, having regard to the decision in Australian Postal Corporation v Gorman [[2011] FCA 975] the terms of settlement would constitute a complete answer to the cause of action in the s.394 application if performed by Logic. 2

[14] In the event that Logic complies with the following the application made by Mr Coleman on 21 December 2011 under s.394 of the Act will be dismissed by order of the Tribunal.

Directions

[15] Fair Work Australia accordingly directs as follows:

1. Logic is to pay Mr Coleman the total amount of monies payable under the terms of settlement in Exhibit A in the matter plus 10.5% per annum interest on that amount, from 25 January 2012 to 12 September 2012 to Mr Coleman.

2. Logic is to pay the total amount in the form of a bank cheque.

3. Logic is to pay the total amount as required above by forwarding a bank cheque for the amount by registered post by the close of business 12 September 2012.

4. Logic is to provide to the Tribunal proof of the form of the payment prescribed hereby and the posting of the payment in the manner prescribed hereby by the close of business on Friday 14 September 2012.

5. Proof of compliance with these directions must include a photocopy of the bank cheque, a copy of the registered post receipt and a statutory declaration on behalf of Logic that the bank cheque was enclosed in the registered mail article so receipted.

COMMISSIONER

 1   Mark Howey v Mars Australia Pty Limited t/a Mars Petcare Australia[2012] FWA 6259, para 74; and Tomas v Symbion Health[2011] FWA 5458, para 59.

 2   See also Mark Howey v Mars Australia Pty Limited t/a Mars Petcare Australia[2012] FWA 6259, para 75; and Townsend v Longwarry Food Park Pty Ltd[2011] FWA 1888, para 45.

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