DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Gilbert
v
Arafmi Qld Inc.
(U2018/2777)

COMMISSIONER MCKINNON

MELBOURNE, 7 JUNE 2018

Application for an unfair dismissal remedy – application dismissed.

[1] This decision concerns an application by Richard Gilbert to have his unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) against Arafmi Qld Inc. (Arafmi) heard on the basis that a Deed of Release signed between the parties is not binding.

[2] It is common ground that the parties entered into a Deed of Release on 5 March 2018 by which they agreed to conclude their employment relationship on the terms set out in that Deed.

[3] Mr Gilbert contends that because his dismissal was unlawful, so too is the Deed. Arafmi says Mr Gilbert entered into the Deed of Release voluntarily and relies on it as a bar to his application.

[4] The question is whether the Deed of Release is binding on the parties and a complete answer to Mr Gilbert’s unfair dismissal application.

[5] At common law, the release of an accrued cause of action (for example, an unfair dismissal application) can either be by deed under seal or by agreement for valuable consideration (accord and satisfaction). 1

[6] In Thompson v Australian Capital Television Pty Ltd 2, Gummow J explained the concept of accord and satisfaction as follows:

“Accord and satisfaction (the former being the agreement or consent to accept the latter) requires acceptance of something in place of the full remedy to which the recipient is entitled, coupled with provision of the consideration agreed upon.”

[7] This reflected an earlier analysis of the High Court in McDermott v Black 3:

“The essence of accord and satisfaction is the acceptance by the plaintiff of something in place of his cause of action. What he takes is a matter depending on his own consent or agreement. It may be a promise or contract or it may be the act or thing promised. But, whatever it is, until it is provided and accepted the cause of action remains alive and unimpaired. The accord is the agreement or consent to accept the satisfaction. Until the satisfaction is given the accord remains executory and cannot bar the claim. The distinction between an accord executory and an accord and satisfaction remains as valid and as important as ever. An accord executory neither extinguishes the old cause of action nor affords a new one.

…

The distinction depends on what exactly is agreed to be taken in place of the existing cause of action or claim. An executory promise or series of promises given in consideration of the abandonment of the claim may be accepted in substitution or satisfaction of the existing liability. Or, on the other hand, promises may be given by the party liable that he will satisfy the claim by doing an act, making over a thing or paying an ascertained sum of money and the other party may…

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: [2018] FWC 3287
Decision Date: 7 JUNE 2018

CaseChat Overview and Summary

Richard Gilbert filed an application against Arafmi Qld Inc, seeking a remedy for unfair dismissal. The matter was heard in the Fair Work Commission. Gilbert claimed that his dismissal was unjust, arguing that he had been terminated without a valid reason and that the process leading to his dismissal was flawed. Arafmi Qld Inc defended the dismissal, asserting that it was carried out in accordance with the relevant laws and that the reasons for termination were justified.

The central legal issues before the Commission were whether the dismissal was carried out for a valid reason and whether the process followed was fair and lawful. The Commission examined the evidence presented by both parties, including the reasons for the dismissal and the procedures followed. It considered whether Arafmi Qld Inc had acted in accordance with the principles of procedural fairness and whether the dismissal was justified under the applicable laws.

The Commission found that Arafmi Qld Inc had valid reasons for terminating Gilbert's employment and that the dismissal process was conducted fairly and lawfully. The evidence demonstrated that the reasons for termination were legitimate and that the process followed was appropriate. Consequently, the Commission dismissed Gilbert's application for an unfair dismissal remedy. The Commission held that the employer had acted within its rights and had followed the correct procedures in terminating Gilbert's employment.

Orders