Naydeen Martinez v Alexander Linday Pty Ltd ATF Wilson Family Trust T/A Westmead Early Education Centre

[2013] FWC 3817

[2013] FWC 3817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Naydeen Martinez
v
Alexander Linday Pty Ltd ATF Wilson Family Trust T/A Westmead Early Education Centre
(U2012/17453)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 17 JUNE 2013

Application for unfair dismissal remedy.

[1] On 28 December 2012, Naydeen Martinez, (the Applicant) made an application for unfair dismissal remedy in relation to their dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] On 31 January 2013, Alexander Lindsay Pty Ltd ATF Wilson Family Trust T/A Westmead Early Education Centre (the Respondent) filed their response to the application for unfair dismissal remedy (Form F3).

[3] On 9 April 2013 the Applicant’s representative forwarded to the Commission a copy of a signed Deed of Release (the Deed) dated 18 March 2013.

[4] The Deed, is in its context and form, a document generally known as a Deed of Settlement between the Applicant and the Respondent. Under the Deed the Applicant released the Respondent from any claims in arising out of or in connection with the Applicant’s employment, including the cessation of employment. The Applicant was legally represented in the proceedings. There is a signature, purportedly of the Applicant, and a signature of a witness.

[5] A dispute arose between the parties about whether the Respondent had complied with all its obligation under the Deed. As a consequence the Applicant did not file a notice of discontinuance. A mention was held on 14 June 2013 and the Applicant’s representative advised that the dispute was ongoing. The Respondent advised that it had complied with all its obligations.

[6] Having regard to the material before me, I find that there is in existence a binding agreement to settle the Applicant’s application.

[7] Section 587 of the Act provides:

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

(c) the application has no reasonable prospects of success.

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] In Australia Postal Corporation v Gorman, 1 Besanko J held that the existence of a binding settlement or “accord and satisfaction” extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement.2

[9] His Honour stated:

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. 3

[10] I am satisfied that in the circumstances where there is a binding agreement between the parties, I should exercise my power under s.587(1)(c) of the Act to dismiss the Applicant’s application. An order to this effect will be issued.

DEPUTY PRESIDENT

 1 [2011] FCA 975

 2   Ibid at [31]

 3   Ibid at [33]

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