Senituli Kaihau v Toll Transport Pty Limited T/A Toll Contract Logistics

[2015] FWC 6686

[2015] FWC 6686

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Senituli Kaihau
v
Toll Transport Pty Limited T/A Toll Contract Logistics
(U2013/9596)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 30 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] On 14 May 2013, Mr Senituli Kaihau made an application for unfair dismissal remedy in relation to his dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] On 25 June, 2013 Toll Transport Pty Limited (Toll) filed its response to the application for unfair dismissal remedy.

[3] The matter was the subject of conciliation on 26 June 2013 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[4] On 4 September 2013, Mr Kaihau’s representative emailed the Fair Work Commission:

“I write to confirm that the matter has been settled by way of mutual agreement that has been recorded in a Deed of Release.

At present the Respondent (Toll) has a number of obligations under the Deed which are yet to be completed. These should all be completed within 14 days.

As such I request that the proceedings be adjourned generally pending the filing by the Applicant of a Notice of Discontinuance (pursuant to the settlement agreement).

The Respondent’s lawyer (Seamus Burke) who is copied into this email, is in agreement with this approach.

Would you please acknowledge your receipt of this email & confirm, that this proposed course of action meets your approval, at your earliest possible convenience.”

[5] On 7 September 2015, Toll emailed my chambers a copy of the Deed of Release (the Deed) which is dated 2 September 2013, and confirmed settlement monies were paid to Mr Kaihau on 17 September 2013.

[6] The Deed sets out an agreement between Mr Kaihau and Toll. Under the Deed, in consideration of Toll allowing Mr Kaihau to resign, Mr Kaihau released Toll from any claims in relation to Mr Kaihau’s employment, termination and events leading to the termination.

[7] On 8 September 2015, correspondence was forwarded to Mr Kaihau and he was given an opportunity to file submissions in respect of why the matter should not be dismissed:

“In light of this, the Deputy President is considering whether she should, of her own motion, dismiss your application under s.587 of the Fair Work Act 2009 because it has no reasonable prospects of success.

She refers the parties to the decision of the Full Bench in Curtis v Darwin City Council [2012] FWAFB 8021 which referred to the decision of the Federal Court in Australian Postal Corporation v Gorman [2011] FCA 975 which is authority for the proposition that if there is a binding agreement between parties to an unfair dismissal application then the application has no reasonable prospects of success and may be dismissed.

Prior to deciding whether she should dismiss this application the following directions are made.

Mr Kaihau is to file and serve by close of business on Wednesday 16 September 2015 submissions and evidence as to why his application should not be dismissed because it has no reasonable prospects of success.”

[8] Mr Kaihau did not file any submissions.

[9] Having regard to the material before me, I find that there is, in existence, a binding agreement to settle Mr Kaihau’s application.

[10] 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.

[11] 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

[12] 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

[13] 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 Kaihau’s application. An order to this effect will be issued.

DEPUTY PRESIDENT

 1 [2011] FCA 975

 2   Ibid at [31]

 3   Ibid at [33]

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