Scott Hammermeister v AimBig Employment Pty Ltd T/A AimBig Employment

[2023] FWC 2490

[2023] FWC 2490

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Scott Hammermeister
v

AimBig Employment Pty Ltd T/A AimBig Employment

(U2023/7935)

DEPUTY PRESIDENT LAKE BRISBANE, 9 OCTOBER 2023

Application for an unfair dismissal remedy – jurisdictional objection – deed executed – application dismissed.

1. Mr Scott Hammermeister (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of his employment with Aimbig Employment Pty Ltd (the Respondent).

1. The Applicant’s employment started on 16 March 2020. The Applicant states he was dismissed on 16 March 2023 and that his dismissal took effect the same day.

1. The Applicant lodged his application on 23 August 2023. The application was lodged 139 days outside the 21-day statutory time limit prescribed by s.394(2) of the Act.

1. The Applicant attached a Deed of Release along with his Form F2 application signed by both parties on 17 March 2023. Clause 7.1 of the signed deed states:

‘The Company and the Employee agree and acknowledge:

(a)That this Deed is intended to be legally binding

(b)In consideration of the Settlement Sum, the Employee agrees to release the Company from all or any liability in respect of all or any Claims made against it by any person or body on the basis that the payment was reduced by tax at the correct rate and the Employee will fully indemnify the Company in respect of all or any claims for unpaid tax, interest and penalties.’

(c)That with effect from the date of execution of this Deed that they will not disparage each other

(d)They have freely entered into this Deed after having the opportunity to carefully consider its contents and to obtain legal advice on the matters in this deed’

(emphasis added)

1. Clause 3.1 and clause 3.2 are standard release and indemnity clauses which were not in the Deed of Release attached to the Form F2. The Applicant stated that he had removed these as he did not intend to be bound by the release. The Applicant stated that he was under duress in signing the contract as he had only 4 business hours to sign the document.

1. On 27 September 2023, my Chambers informed the Applicant that the unfair dismissal application would not be able to proceed as there was a deed of settlement that bound the parties. Despite this, the Applicant wished to be heard on this and the matter was listed for hearing on 5 October 2023.

Consideration

1. Section 587 provides the following:

“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.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2)       Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)       is frivolous or vexatious; or

(b)       has no reasonable prospects of success.

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. The Federal Court has considered that the Commission has the power to dismiss an unfair dismissal application under s.587 where a binding settlement agreement exists. That is because the binding settlement agreement extinguishes the pre-existing cause of action and the continued pursuit of the application based on such cause of action is clearly capable of being considered to be frivolous or vexatious, or without reasonable prospects of success.[1]

1. The Applicant received consideration for signing the deed of settlement and therefore it is a binding contract. The question of whether the deed was executed correctly, including the limited time the Applicant had to consider the deed and his subsequent alleged duress, is a question for the courts. Until there is evidence to establish that the deed has been set aside, the Commission has no jurisdiction to determine this matter.

1. As a result, this application is dismissed pursuant to s.587(1)(c) due to there being no reasonable prospects of success while the deed of settlement remains binding. I Order accordingly.

DEPUTY PRESIDENT

[1] Australia Postal Corporation v Gorman [2001] FCA 975; see also Curtis v Darwin City Council[2012] FWAFB 2021.

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