Scott Eldridge v Philip Leong Stores Pty Ltd T/A Woolworths Limited

[2014] FWC 5767

[2014] FWC 5767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Eldridge
v
Philip Leong Stores Pty Ltd T/A Woolworths Limited
(U2014/5632)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 25 AUGUST 2014

Application for relief from unfair dismissal.

[1] On 13 March 2014, Mr Scott Eldridge made an application pursuant to s.394 of the Fair Work Act 2009 for relief from unfair dismissal against Philip Leong Stores Pty Ltd T/A Woolworths Limited (Woolworths).

[2] On 24 April 2014, the parties reached a settlement at conciliation. Correspondence confirming this agreement was sent to both parties. The correspondence reminded parties that they agreed to waive the three day cooling off period.

[3] On 16 May 2014, Mr Eldridge sent correspondence to the Fair Work Commission (the Commission) to advise that he wished to continue with his application as Woolworths had “broken their end of the deal”.

[4] On 20 May 2014, Mr Eldridge was contacted by the Commission in response to his correspondence of 16 May 2014. During this conversation Mr Eldridge confirmed that the Terms of Settlement (the Deed) had been signed. Correspondence confirming that advice was sent to Mr Eldridge on 2 June 2014.

[5] Mr Eldridge responded to the Commission’s correspondence on 8 June 2014 and confirmed that he wanted to pursue his application.

[6] On 25 June 2014, Woolworths was asked to provide a copy of the signed Deed of Settlement. The Deed was provided to the Commission the following day. The Deed was executed by both parties. Woolworths also provided confirmation of payment to Mr Eldridge of settlement monies.

[7] On 30 June 2014, I caused further correspondence to be sent to Mr Eldridge referring him to Australian Postal Corporation v Gorman. 1 Mr Eldridge was advised that I was considering dismissing the application, on my own motion, pursuant to s.587 of the Fair Work Act 2009. I gave both parties an opportunity to file submissions as to why Mr Eldridge’s application should not be dismissed or should be dismissed respectively. In addition, I directed that Woolworths provide evidence that it had complied with the terms of the Deed.

[8] Woolworths advised on 9 June 2014 that it wished to rely on the material it had already filed and Mr Eldridge did not file any material. The Commission has made several attempts to contact Mr Eldridge by telephone which have been unsuccessful.

[9] On 15 August 2014, at my request, Woolworths confirmed that it had served Mr Eldridge at his home address with a Statement of Service.

[10] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As there are no disputed facts in this matter, I have decided to determine the application on the papers.

[11] The Deed sets out an agreement between Mr Eldridge and Woolworths. Under the Deed, Woolworths agreed to pay monies to Mr Eldridge and provide him with a Statement of Service in exchange for releasing Woolworths from any claims in relation to his employment, termination and events leading to the termination.

[12] Having regard to the material before me, I find that there is, in existence, a binding agreement to settle Mr Eldridge’s application and I am satisfied that Woolworths has complied with the terms of the Deed.

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

“(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.”

[14] In Australia Postal Corporation v Gorman 2 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.3

[15] 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.” 4

[16] 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 Mr Eldridge’s application. An order to this effect will be issued.

DEPUTY PRESIDENT

 1 [2001] FCA 975.

 2   Ibid.

 3 Ibid at [31].

 4 Ibid at [33].

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