Rebecca Smith v WA Insurance Builders T/A WA Insurance Builders

[2020] FWC 5145

[2020] FWC 5145

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Smith
v
WA Insurance Builders T/A WA Insurance Builders
(U2020/10716)

COMMISSIONER BISSETT MELBOURNE, 25 SEPTEMBER 2020

Application for an unfair dismissal remedy - request to re-open application – binding settlement agreement – accord and satisfaction extinguishes cause of action – application dismissed pursuant to s.587 of the FW Act.

[1] Ms Rebecca Smith (Applicant) made an application to the Fair Work Commission seeking a remedy for her unfair dismissal from WA Insurance Builders (Respondent) on 7 August 2020. Both the Applicant and Respondent agreed to participate in an expedited conciliation conducted before a staff conciliator on 10 August 2020.

[2] The Commission records indicate that the application was settled by agreement of the parties on 10 August 2020 and that both parties signed agreed terms of settlement by 12 August 2020.

[3] On 31 August 2020 the Commission received an application (Form F1) from the Applicant which said:

Requesting unfair dismissal case # U2020/l0716 to be re-opened due to the respondent breeching the conditions as follows:

3.2- He has refused to pay (copy of email attached)

3.9 - An email was sent by the company to all employees advising them of the unfair dismissal case and being untruthful in the email (copy attached)

He has no right sending an email to all employees, he has breached the agreement by doing so.

I requested a copy of the email from an employee and that person told management about this request.

They now believe that I have breached by requesting a screenshot of the email.

Please find attached copies of emails and documents to support my request [sic]

[4] Attached to the Form F1 were the following documents:

•  An (undated) internal email from the Business Development Manager of the Respondent advising that the Applicant had made a unfair dismissal application and that the matter had been settled and that any staff who were friends of the Applicant should not disclose to the Applicant any details of the Business;

•  An email dated 18 August 2020 to the Applicant from the Managing Director of the Respondent advising that he understood the Applicant had sought a copy of an internal email [possibly that described above although this is not clear]; that he considered this to be a breach of the settlement agreement reached and that the Respondent now had “every right to pursue legal action against [the Applicant]”;

•  An email dated 19 August 2020 from the Applicant to the Commission conciliator in which the Applicant suggests the Respondent had breached several provisions of the settlement agreement and she now wished to have her application for unfair dismissal reinstated;

•  A further email dated 21 August 2020 from the Managing Director to the Applicant in which he says that the Respondent contacted the Commission and was advised that the Commission has no more involvement in the matter as it had been settled. The Respondent also advised that they would no longer pay a bonus apparently otherwise due to the Applicant.

[5] On 31 August 2020 my chambers sent correspondence to the parties and sought submissions as to whether a binding settlement agreement had been reached. That correspondence also advised the parties that if a binding settlement agreement had been reached and either party thought the other had not complied with the terms of the settlement agreement the Commission could not resolve such a dispute and it was now a matter for the relevant court.

[6] In response to the invitation for submissions as to whether a settlement agreement had been reached both the Applicant and Respondent filed materials. On request as to whether either sought a hearing or was satisfied for the Commission to determine the matter on the basis of the material filed, the Applicant indicated she did not wish to be heard. The Respondent did not provide a response on this question. I therefore decided that the matter would be dealt with on the basis of the submissions made by the parties.

Submissions

[7] On 1 September 2020 the Respondent filed materials with the Commission in which it outlined breaches by the Applicant of her employment contract it considered she had committed following the settlement of her unfair dismissal application. The Respondent did not dispute that a binding settlement agreement had been made between the parties in response to the unfair dismissal application.

[8] On 8 September 2020, in response to a request by the Commission as to whether a settlement agreement had been reached, the HR Manager for the Respondent said that she could “confirm that with the facilitation of Fair Work Australia [sic], WA Insurance Builders and Rebecca Smith reached an agreement on the 11th of August 2020 in regards to her termination.” She also said that the Respondent considered that the Applicant had “breached her contractual obligations to our company and as a result part of the settlement payment has not been paid.”

[9] The Applicant filed a submission on 9 September 2020 in which she outlined the breaches of the settlement agreement reached between the parties (those outlined above) she considered made by the Respondent. The Applicant did not question that a settlement agreement had been made or suggest that it was made under duress.

Consideration

[10] Despite the complaints of both parties neither disputes that a binding settlement agreement was reached between them to settle the unfair dismissal application. That agreement was , on the evidence and records, reduced to writing and signed by the parties on 11 August 2020.

[11] In Australian Postal Corporation v Gorman 1 Besanko J said:

30 The applicant’s case is that there was an accord and satisfaction between it and the first respondent…

31 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.

[12] That is, a binding settlement agreement having been made (an accord and satisfaction) extinguishes the unfair dismissal application. The settlement agreement “answers” or settles the original unfair dismissal application, that is the unfair dismissal application is resolved. Any action to be taken must now be with respect to the enforcement of the agreement reached between the parties. This is not a power the Commission can exercise but rather is a matter for the courts.

Should the application be dismissed?

[13] In Zoiti-Licastro v Australian Taxation Office 2 (Zoiti-Licastro) the Full Bench considered the power of the Australian Industrial Relations Commission to dismiss a matter when there is a binding agreement. The reasoning therein remains relevant even though the legislation under consideration in that matter was significantly different to the Fair Work Act 2009 (FW Act).

[14] In Zoiti-Licastro the Full Bench held as follows:

“[20] Where the Commission finds that there is a complete answer to the applicant’s claim and dismisses the claim, there is no substance in any suggestion that the Commission has breached its duty to hear the application. And subject to the observance of the rules of natural justice, it is highly undesirable that the parties should be put to the expense of a full hearing when it is clear at the outset that the claim cannot succeed. Take a case in which there is a duly executed settlement agreement in evidence. Subject to the resolution of any argument about the binding nature of the agreement, the settlement would provide a complete answer to the claim and there would be no point in hearing the other evidence.” 

[15] Given that the application for unfair dismissal has been settled and the parties have reached an agreement on that settlement I am satisfied that the application has been dealt with by the Commission. The file has been closed by the Commission and there are no grounds on which it could be re-opened.

[16] I am satisfied that there are sound reasons for not re-opening a matter where settlement has been reached. There is a need for there to be some finality to a matter before the Commission in circumstances where the parties willingly agree to the terms of that settlement. That concludes the action in the Commission. As said above any dispute about the enforcement of the terms of the agreement are now about that private agreement or contract of the parties. It is no longer a matter that falls within the jurisdiction of the Commission.

[17] I have therefore determined to dismiss the application of the Applicant to “re-open” her unfair dismissal application.

[18] Section 587 of the FW Act does not limit the circumstances in which the Commission may dismiss an application. I am satisfied that, given the agreement reached between the parties to settle the unfair dismissal application, the application to re-open the unfair dismissal should be dismissed. An order 3 dismissing the application will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR723065>

 1 [2011] FCA 975.

 2 (2006) 154 IR 1.

 3   PR723066.