Paul Poltorasky v Pinnacle Hire Pty Ltd - [2024] FWC 898

[2024] FWC 898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Paul Poltorasky
v

Pinnacle Hire Pty Ltd

(C2023/8196)

COMMISSIONER DURHAM

BRISBANE, 8 APRIL 2024

Application to deal with contraventions involving dismissal – jurisdictional objection – deed signed by employee – potential application to set aside deed – whether adjournment should be granted – application to be dismissed if proceedings not commenced

Background

Mr Paul Poltorasky (Mr Poltorasky) has made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Mr Poltorasky’s allegations that he had been dismissed from his employment with Pinnacle Hire Pty Ltd (Pinnacle/the Respondent) in contravention of Part 3-1 of the FW Act.

Mr Poltorasky commenced full-time employment with Pinnacle on 10 October 2022 in the position of IT Support. The employment relationship ended on 11 December 2023, it is contested whether Mr Poltorasky resigned or whether Pinnacle’s conduct amounts to constructive dismissal.

On 11 December 2023, a meeting was held between Mr Poltorasky and Mr Jeremy Salisbury, Managing Director, regarding a number of concerns, in particular an allegation that Mr Poltorasky inappropriately accessed Pinnacle’s IT system to ascertain the salary being paid to a new IT Co-ordinator. Mr Poltorasky denied the allegation and Mr Salisbury advised that it was likely his employment would end but if he wished he may elect to resign his employment as an alternative to being dismissed. Subsequently, Mr Poltorasky signed a deed of release in conjunction with his alleged resignation.

The Deed of Settlement/Deed of Release (the Deed) required Pinnacle to pay Mr Poltorasky, in addition to his usual employment entitlements and accrued but untaken annual leave benefits calculated up to and including the resignation date, an amount equal to his salary in lieu of required notice, two months’ pay before tax.

The Deed contains a one-way release, where Mr Poltorasky releases Pinnacle from all or any present and future claims, whether known or unknown, in any way relating to matters including employment and the resignation. Further that Pinnacle may plead the Deed as a bar to any relevant claim.

There is no dispute that Mr Poltorasky signed the Deed, however Mr Poltorasky contests its enforceability on the basis that he was forced to sign the Deed.

Mr Poltorasky filed a Form F8 general protections application involving dismissal on 26 December 2023, which was within the 21-day filing period.

Pinnacle filed a Form F8A response to general protections claim on 24 January 2024. Though no jurisdictional objection was indicated on the F8A that Mr Poltorasky was not dismissed, it was subsequently confirmed by way of email on 6 February 2024. This email further confirmed a jurisdictional objection based on the Deed, and their view that Mr Poltorasky is jurisdictionally barred from bringing the proceeding because of the release.

Given the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWC 898
Decision Date: 8 APRIL 2024

CaseChat Overview and Summary

The Fair Work Commission (FWC) dealt with an application from Mr Paul Poltorasky, who alleged that his dismissal by Pinnacle Hire Pty Ltd was in breach of the Fair Work Act 2009 (FW Act). The central dispute was whether Mr Poltorasky was dismissed or if he resigned, and if he was dismissed, whether it was lawful. A critical issue was the enforceability of a Deed of Release signed by Mr Poltorasky, which Pinnacle argued barred the application. The Commission had to decide if it could dismiss the application based on the Deed or if it should adjourn the proceedings to allow Mr Poltorasky to challenge the Deed's validity in court.

The Commission considered its jurisdiction to dismiss the application under section 587 of the FW Act, which allows dismissal if an application is frivolous or lacks reasonable prospects of success. The Commission also considered its power to decline acting on an application that fails for want of jurisdiction. Given that Mr Poltorasky signed the Deed, the Commission needed to assess if it could set aside the Deed or if it was bound by it. The Commission found it had the power to dismiss the application but decided to adjourn it to allow Mr Poltorasky to seek to have the Deed set aside in court. This decision aimed to balance the objects of the FW Act, particularly ensuring fair and just treatment of the parties and providing effective relief.

The Commission determined that dismissing the application immediately might result in Mr Poltorasky losing access to the protections of the FW Act if the Deed were later set aside. Conversely, adjourning the application would allow Mr Poltorasky to challenge the Deed's validity, aligning with the objects of providing effective relief and ensuring a fair process. The Commission decided to adjourn the application unless Mr Poltorasky provided evidence of proceedings to set aside the Deed by a specified date. If such evidence was provided, the application would be listed for further consideration. This decision aimed to balance the interests of both parties and ensure compliance with the FW Act's objectives.

Unless Mr Poltorasky provided evidence of proceedings to set aside the Deed by the close of business on 29 April 2024, the Commission would dismiss the application without further reference to the parties. If evidence was provided, the application would be listed for report-back on a date to be confirmed.

Orders