Paul Barratt-Hassett v Perc Group Pty Ltd T/A Perc Tiling

[2018] FWC 6306

[2018] FWC 6306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Paul Barratt-Hassett

v

PERC Group Pty Ltd T/A Perc Tiling

(U2018/3138)

Commissioner McKinnon MELBOURNE, 11 OCTOBER 2018

Request to re-open unfair dismissal application – whether settlement agreement – effect of settlement agreement on application.

1. This decision concerns a request by Mr Paul Barratt-Hassett to re-open an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) against Perc Group Pty Ltd t/as Perc Tiling on the basis that a settlement agreement reached in the matter is not binding.

1. It is not in dispute that the unfair dismissal application was settled in conference on 26 July 2018 and that a Deed of Release, together with two notations, were signed by the parties at that time. Perc Tiling was legally represented in the conference and Mr Barratt-Hassett was not.

1. Mr Barratt-Hassett seeks a hearing of his unfair dismissal application because he says the settlement reached with Perc Tiling is ‘broken’. He says Perc Tiling has not complied with its obligations in relation to taxation of the agreed settlement sum and has not consented to Queensland Police exercising its ‘prosecutorial discretion’ not to proceed further with two police complaints made against him by them. He says in each case those were terms of the settlement reached on 26 July 2018.

1. Perc Tiling says there is a binding settlement between the parties and that as a result, the unfair dismissal application cannot proceed.

1. The question is whether there remains a matter before the Commission or whether the agreement reached on 26 July 2018 was binding and brought an end to the unfair dismissal application, such that the application should now be dismissed. To answer that question, it is necessary to determine what the parties agreed on 26 July 2018 and in particular, whether two notations signed at the same time as the Deed of Release were part of the agreement reached.

1. The matter was heard on 20 September 2018. Perc Tiling was represented by Collas Moro Ross Solicitors with permission.

The evidence

1. There is no dispute that Perc Tiling has paid Mr Barratt-Hassett an amount it says complies with its obligations under the Deed of Release after the deduction of taxation.

1. Mr Barratt-Hassett gave evidence that both parties agreed to the Deed of Release including two notations signed separately to the Deed on the day of settlement. He understood the notations to be binding and part of the settlement agreement.

1. Peter Russ, Director of Perc Tiling, gave evidence that on the day a settlement agreement was reached, he agreed to consent to Queensland Police making a decision to discontinue prosecution of Mr Barratt-Hassett in relation to a complaint he had made. He understood the arrangement was not to form part of the Deed of Release and was an understanding about what might occur in circumstances where the police matter was out of the parties’ control. He did not consider that the agreement made with Mr Barratt-Hassett required him to advise Queensland Police he was going to discontinue his complaint. He subsequently spoke to Queensland Police and was asked what he wanted to do about his complaint. His reply was ‘no comment’.

1. Both parties agree that the notations reflected the discussions that resulted in the settlement agreement.

1. I am satisfied on the evidence that there was an agreement to settle Mr Barratt-Hassett’s unfair dismissal application in return for payment of a monetary sum less applicable taxation.[1] The settlement agreement was reflected in the Deed of Release together with the separately drawn notations.

The effect of the settlement agreement

1. The settlement agreement signed by the parties on 26 July 2018 is an accord and satisfaction between them. It binds the parties to carry each of its agreed terms to execution. It also extinguishes the existing cause of action (that is, the unfair dismissal application) and replaces it with a new cause of action based on the agreement of 26 July 2018.[2]

1. The Commission can recognise a binding settlement and dismiss an application that has no reasonable prospects of success on that basis under section 587 of the Act.[3] In this matter, the accord and satisfaction is a complete answer to Mr Barratt-Hassett’s unfair dismissal application. It has no reasonable prospects of success.

Conclusion

1. There appears to have been substantial compliance with the Deed of Release in relation to payment of the agreed settlement sum. If there is a concern about whether the appropriate amount of taxation has been deducted, the matter can be raised with the Australian Taxation Office. There is separately a question about the enforceability of the notation in relation to the Queensland Police matter and also whether there has been compliance in relation to it. My impression is that, notwithstanding the commitments made, the Director of Perc Tiling is apprehensive about carrying his commitment through to execution.

1. Compliance and enforcement of binding settlement agreements are not matters over which the Commission has jurisdiction. Those matters are properly brought before the courts.

1. The application is dismissed.

COMMISSIONER

Appearances:

P Barratt-Hassett on his own behalf.

C Barron for PERC Group Pty Ltd

Hearing details:

2018.
Melbourne and Brisbane (video link):
September 20.

<PR701222>

[1] Exhibit 1, Statement of Paul Barratt-Hassett; Exhibit 2, Statement of Peter Russ; Audio recording of hearing on 20 September 2018

[2] Australian Postal Corporation v Gorman [2011] FCA 975 at [31] per Besanko J

[3] Ibid at [33]

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