Paul Passehl v Link SA Pty Ltd

[2015] FWC 2001

[2015] FWC 2001 [Note: An appeal pursuant to s.604 (C2015/2497) was lodged against this decision - refer to Full Bench decision dated 12 June 2015 [[2015] FWCFB 3499] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Passehl
v
Link SA Pty Ltd
(U2014/5016)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Paul Passehl lodged an application for an unfair dismissal remedy on 26 February 2014. The application was referred to conciliation on 7 April 2014 where a settlement was reached and the file was closed.

[2] On 10 December 2014, Mr Passehl made an application that his case be reopened. A copy of the documentation provided by Mr Passehl was sent to Link SA Pty Ltd (Link SA). Link SA responded on 7 January 2015 advising that Mr Passehl and Link SA had signed terms of settlement after the conciliation conference and Link SA had paid the monies due in accordance with the terms of settlement and provided Mr Passehl with a statement of service in accordance with the terms of settlement. Link SA opposed the matter being reopened.

[3] On 2 March 2015, I caused an email to be sent to Mr Passehl. In that email, I advised Mr Passehl that I was considering whether I should dismiss his application under section 587 of the Fair Work Act 2009 because it had no reasonable prospects of success. I referred Mr Passehl to the decision of the Full Bench in B. Curtis v Darwin City Council[2012] FWAFB 8021 which referred to the decision of the Federal Court in Australian Postal Corporation v Gorman [2011] FCA 975 which is authority for the proposition that if there is a binding agreement between parties to an unfair dismissal application, then the application has no reasonable prospects of success and may be dismissed.

[4] I provided the parties with an opportunity to file material in relation to my proposal that I should dismiss Mr Passehl’s application. I advised the parties that if Mr Passehl’s submissions show that he had an arguable case, then Link SA would be given an opportunity to make submissions. If I formed the view that there was no arguable case, I would determine the application on the basis of the material before me.

[5] On 6 March 2015, Mr Paasehl filed material in support of his application to have his application heard.

[6] Mr Passehl said he accepted the offer because he was broke and needed the money to pay his bills and buy food. He further stated that he contacted the Fair Work Office in Adelaide to have another go but he was told that as he had accepted the payment, it was finished. He said he was not told there was a two week window to appeal until it was too late. He then took steps to obtain advice.

[7] Mr Passehl signed the terms of settlement on 7 April 2014 and was paid the monies due on 10 April 2014. On 28 April 2014, he was provided with a statement of service. The terms of settlement, in addition to the payment of monies, saw Mr Passehl’s dismissal changed to a resignation. While the monies were paid within the timeframe set in the deed, the statement of service was not.

[8] The terms of settlement contained a release in favour of Link SA.

[9] The Fair Work Commission has the power to dismiss an application if it has no reasonable prospects of success.

[10] In Australia Postal Corporation v Gorman 1, Besanko J said as follows:

“An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.” 2

[11] His Honour went on to say:

“a valid accord 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

[12] I accept that Mr Passehl signed the deed at a time when he had financial difficulties. However, I do not consider that is a sufficient reason to overlook the settlement reached by the parties. I am not satisfied on the material before me that I should ignore the signed terms of settlement and permit this matter to proceed.

[13] In reaching this decision, I make no judgment about the merits of Mr Passehl’s unfair dismissal claim. I am satisfied on the material before me that Mr Passehl’s claim has no reasonable prospects of success as he settled his unfair dismissal claim and he has received the benefits of that settlement. That settlement extinguished his unfair dismissal claim. Mr Passehl’s application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

 1 [2011] FCA 975.

 2 Ibid at [31].

 3 Ibid at [33].

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