Nalbandian v Commonwealth of Australia (Australian Bureau of Statistics)
[2016] FCCA 1605
•29 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NALBANDIAN v COMMONWEALTH OF AUSTRALIA (AUSTRALIAN BUREAU OF STATISTICS) | [2016] FCCA 1605 |
| Catchwords: INDUSTRIAL LAW – Alleged adverse action against employee – proper construction of an executed deed – whether the deed signed by the applicant was properly witnessed – whether the applicant was under duress when signing the deed – whether the applicant was the subject of any unconscionable conduct at the time of signing the deed – whether the deed is binding upon the applicant – application dismissed. |
| Legislation: Fair Work Act 2009, ss.351, 566 Disability Discrimination Act 1992 |
| Applicant: | ANTHONY NALBANDIAN |
| Respondent: | COMMONWEALTH OF AUSTRALIA (AUSTRALIAN BUREAU OF STATISTICS) |
| File Number: | SYG 1380 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 29 June 2016 |
| Date of Last Submission: | 29 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Duc |
| Solicitors for the Applicant: | Duc Legal |
| Counsel for the Respondent: | Mr Y Shariff |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
There be determined first and separately the question of whether the Deed of Agreement dated 27 March 2015 is binding on the applicant.
The answer to the separate question is that the Deed of Agreement dated 27 March 2015 is binding on the applicant.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1380 of 2015
| ANTHONY NALBANDIAN |
Applicant
And
| COMMONWEALTH OF AUSTRALIA (AUSTRALIAN BUREAU OF STATISTICS) |
Respondent
REASONS FOR JUDGMENT
This is an application within the Court’s jurisdiction under s.566 of the Fair Work Act 2009 in which the applicant sought relief in respect of alleged adverse action under s.351 of the Fair Work Act 2009. The applicant complained about the execution of a deed that he signed on 27 March 2015 which gave rise to him being treated as redundant.
Pursuant to orders of the Court, the applicant filed a points of claim document identifying alleged breaches of s.340 of the Fair Work Act 2009, a contravention of the Disability Discrimination Act 1992 for breach of contract, alleged claim of negligence, alleged breach of the ABS Enterprise Agreement and alleged breach of the ABS Manual of Personnel Management and sought to advance grounds as to why the deed should be voided on the grounds of duress.
The matter was fixed for hearing today, and at the commencement of the hearing, counsel for the applicant properly conceded that the claims identified in the points of claim and the application all fell within the scope of the deed of release if that deed was binding. It was in those circumstances that the Court was invited to make an order for separate determination of the question of whether the deed was binding upon Mr Nalbandian. It is that question upon which the Court has now had the benefit of evidence adduced by the applicant as well as evidence from the respondent and submissions by counsel for the parties.
The applicant’s case is that the applicant alleges he was suffering from a special disability at the time that he signed the deed, and the applicant alleges by reason of an email communication to the Commonwealth sent on the date that the deed was signed, that the Commonwealth was on notice of the alleged special disability by the applicant. The background to the proceedings are that the applicant was employed by the respondent from 7 April 2010, and pursuant to the deed of agreement that was signed by the applicant on 27 March 2015, the applicant’s employment was terminated by consent, and he was made redundant on 31 March 2015.
Over a substantial period, the applicant was the subject of a performance review for unsatisfactory work. The applicant embarked upon a course of complaints and proceedings to try and postpone the prospect of his dismissal. I find that the applicant’s unsatisfactory work was the cause of the steps taken to dismiss the applicant. I find that the applicant’s complaints and proceedings all lacked substance and were deliberate unmeritorious attempts by the applicant to prevent his dismissal. The steps taken to dismiss the applicant were not taken for any proscribed reason under the Fair Work Act 2009 (Cth).
Pursuant to that deed, the applicant was paid an amount of $28,546. It was after that payment was made that the applicant first suggested that the deed was not binding upon him. Prior to the execution of the deed, the applicant had, on two occasions, declined to execute the deed. At the time that the applicant came to execute the deed, he had a solicitor acting for him who conveyed to the Commonwealth the applicant’s desire to execute the deed if the termination of his employment could be withdrawn. It was in those circumstances, after the communication from the applicant’s solicitor, that the applicant came to sign the deed and send it back to the Commonwealth.
The version of the deed signed by the applicant was not properly witnessed. This was drawn to the applicant’s attention on the day, and the applicant then sent to the Commonwealth an executed deed with a witness described as Mr Bill Wong, and the signature of Mr Bill Wong, and the date. I find that the name, signature and date of the witness were in the applicant’s handwriting. The applicant placed that signature on the document to falsely represent to the Commonwealth that the Deed had been executed by Mr Nalbandian, and properly witnessed.
That use of a false witness was dishonest conduct by Mr Nalbandian. I find Mr Nalbandian knew he was being dishonest by falsely signing as a witness under a false name. I find that Mr Nalbandian was not a witness of truth. I find that Mr Nalbandian was willing to manufacture evidence in the witness box if he thought it would assist him. Mr Nalbandian gave evidence about having not read the deed, none of which was in his affidavit. Mr Nalbandian was a most unimpressive witness, and I do not accept him as credible. Much of Mr Nalbandian’s evidence was argumentative and he was determined to try and maintain his explanations regardless of whether they were responsive to the questions. I find that Mr Nalbandian grossly exaggerated his state of mind, the circumstances of his admission and discharge from hospital and the alleged impact of his medication.
Mr Nalbandian’s oral evidence in relation to the circumstances in which he came to place Mr Bill Wong’s signature on the document was materially inconsistent with a statutory declaration that he had signed. Mr Nalbandian is, I find, an untruthful and dishonest witness, and I do not accept his evidence. It was put on behalf of Mr Nalbandian that he was suffering from a special disability. I reject that submission. I find that Mr Nalbandian was well aware of the nature of the deed at the time he signed it, understood what he was doing, was exercising his own voluntary free will and was not the subject of any special disability. I find that Mr Nalbandian was not adversely affected by any medication at the time of signing the deed and fully understood the nature of the deed and his act of execution of the Deed.
I find that Mr Nalbandian knew that he would obtain an advantage and benefit from signing the deed, and did so having understood the benefit that he would get from that deed and was well aware of his choice not to settle the claims he had on foot. I reject Mr Nalbandian’s evidence that he did not read the deed. Mr Nalbandian’s conduct on the day is inconsistent with that oral evidence by Mr Nalbandian. Further, I find that the email communication sent to the Commonwealth on 27 March 2015 was not one which put the Commonwealth on notice of any special disability by the applicant. The email was sent to seek a further offer by the Commonwealth to settle with Mr Nalbandian and did not put the Commonwealth on notice of any incapacity by Mr Nalbandian.
The applicant was, in relation to the communications concerning the proposed deed, represented by a lawyer at the relevant time. There was nothing to give the Commonwealth notice of any alleged special disability by Mr Nalbandian in being unable to understand the nature of the document that he was executing, or its effect. I find that Mr Nalbandian fully understood the nature and effect of the document he executed. I find that the Commonwealth had no notice of any alleged special disability by Mr Nalbandian. I find that Mr Nalbandian in fact had no special disability at the time he signed the deed. I find that Mr Nalbandian was not the subject of any unconscionable conduct at the time of signing the deed. I find that Mr Nalbandian was not the subject of any illegitimate pressure or duress at the time of signing the deed.
I find the deed is binding on Mr Nalbandian. The question that is ordered to be separately determined should be answered in the affirmative that the deed is binding on Mr Nalbandian. It was common ground that if the question was answered in the affirmative that the deed is binding upon the applicant then the applicant’s proceedings should be dismissed. I dismiss the applicant’s proceedings. I will hear the parties on costs after I have heard the cross claim.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 1 July 2016
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