Sarah Clark v JMK Nursery T/A JMK Nursery Pty Ltd

[2016] FWC 3323

[2016] FWC 3323

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Clark
v
JMK Nursery T/A JMK Nursery Pty Ltd
(U2016/3860)

COMMISSIONER WILSON MELBOURNE, 27 MAY 2016

Application for relief from unfair dismissal.

[1] On 16 January 2016, Ms Clark made an application for unfair dismissal remedy in relation to her dismissal under s.394 of the Fair Work Act 2009.

[2] On 2 March 2016, the matter was subject of conciliation where the parties agreed to settle. Terms of settlement were sent out to the parties on the same day.

[3] On 22 March 2016, Ms Clark emailed the Commission and advised that JMK Nursery Pty Ltd had not yet signed and complied with the terms of settlement.

[4] The Commission contacted JMK Nursery on 18 April 2016 who advised that the terms of settlement had been executed and settlement monies paid as per the agreement. The Commission attempted to contact Ms Clark on 11 and 24 May 2016 by telephone and email on 18 May 2016 to confirm this advice. Ms Clark did not respond to the Commission’s correspondence and has not contacted the Commission.

[5] Having regard to the material before me, I am satisfied that the matter settled and the matter has been finalised.

[6] Section 587(1) of the Act provides as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[7] In Australia Postal Corporation v Gorman, 1 Besanko J held that the existence of a binding settlement or “accord and satisfaction” extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement.2

[8] His Honour stated:

“33 There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid 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

[9] I am satisfied that in the circumstances where there is a binding agreement between the parties, I should exercise my power under s.587(1)(c) of the Act to dismiss Ms Clark’s application. An order to this effect will be issued.

COMMISSIONER

 1 [2011] FCA 975.

 2 Ibid at [31].

 3 Ibid at [33].

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