Nadine Wallace v Quality Bakers Australia Pty Limited T/A Goodman Fielder

[2015] FWC 7135

[2015] FWC 7135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nadine Wallace
v
Quality Bakers Australia Pty Limited T/A Goodman Fielder
(U2014/10807)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 16 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Ms Nadine Wallace alleged that she had been unfairly dismissed on 20 June 2014 by Quality Bakers Australia Pty Limited T/A Goodman Fielder.

[2] The application was listed for hearing after it did not resolve at conciliation. Ms Wallace was directed to file and serve material in support of her application by 15 September 2014.

[3] On 30 September 2014, Ms Wallace’s representative advised that an in principle agreement had been reached and Ms Wallace would file a notice of discontinuance shortly. Despite many follow ups from the Commission, no notice of discontinuance was filed and on 27 March 2015, Ms Wallace’s representative ceased to represent her.

[4] On 31 July 2015, Ms Wallace advised the Commission that she had outstanding entitlements and she did not want to close her unfair dismissal application yet.

[5] On 2 September 2015, Goodman Fielder advised that there had been a settlement reached in the matter and the parties had signed a comprehensive deed of settlement on 15 September 2014. Goodman Fielder advised that it had complied with its obligations under the deed.

[6] On 4 September 2015, I caused a letter to be sent to the parties in which I advised that I was considering whether I should, of my own motion, dismiss the application under section 587 of the Fair Work Act 2009 because it had no reasonable prospect of success. The parties were referred to the decision of the Full Bench in Curtis v Darwin City Council¹ and the decision of the Federal Court in Australian Postal Corporation v Gorman.²

[7] Ms Wallace was given until 18 September 2015 to make submissions as to why her application should not be dismissed. Ms Wallace was granted an extension to file her material until 25 September 2015. She was then granted a further extension to file her material by 9 October 2015.

[8] On 7 October 2015, Ms Wallace filed material which went to her dismissal and issues she had with her pay whilst on income protection. Ms Wallace said that it wasn’t until her final pay slip was produced that she realised there had been errors. She said that when she received a print out of her entitlements she did not think it added up as there had been no audit and no sign off on the documents.

[9] Ms Wallace said she was backed into a corner with no one to turn to and then her union representative told her that her claim would be vigorously defended by Goodman Fielder and “threatened litigation by corporate council (sic) if I were to seek any legal advice outside. A settlement deed was then produced for her to sign.”

Consideration

[10] In Australian Postal Corporation v Gorman³ it was accepted that the Commission has the power to dismiss an application where terms of settlement have been reached between the parties to an unfair dismissal application.

[11] In Mladen Stupar v Australia Postal Corporation⁴ I found that the Commission is not empowered to set aside a signed agreement.⁵

[12] At the time Ms Wallace signed the deed she was represented by her union. Further Ms Wallace accepted the payments due under the deed. She has not taken any steps since the deed was entered to have it set aside. The deed provides that it is a complete bar to any proceedings in respect of matters arising out of, or touching on, referred to or contained in the deed.

[13] Ms Wallace in signing the deed acknowledged that she understood the legal significance and effect of signing the deed; she had the opportunity to obtain professional including legal and financial advice in relation to the terms and effect of the deed; and had not been induced to sign the deed by any improper pressure, coercion or undue influence.

[14] A binding settlement agreement is a complete answer to an unfair dismissal claim and it means that the claim is capable of being considered to be frivolous or vexatious or without reasonable prospects of success.

[15] However, the decision to dismiss is still a discretionary one.

[16] Ms Wallace had provided no reasons why I should not exercise my discretion to dismiss her application. She has not actively prosecuted her claim since September 2014. Ms Wallace did not contact the Commission. She responded only when the Commission contacted her to find out why she had not filed a notice of discontinuance. Even then she did not act promptly to seek to have her matter litigated. In those circumstances I will exercise my discretion and dismiss Ms Wallace’s application.

DEPUTY PRESIDENT

<Price code A, PR572988>

1 [2012] FWAFB 8021

2 [2011] FCA 975

3 Australian Postal Corporation v Gorman op cit

4 [2015] FWC 1090

5 Ibid at [37]

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