Shawn Senior v Greencross Pty Limited
[2024] FWC 4
•2 JANUARY 2024
| [2024] FWC 4 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shawn Senior
v
Greencross Pty Limited
(U2023/11197)
| COMMISSIONER MATHESON | SYDNEY, 2 JANUARY 2024 |
Application for an unfair dismissal remedy – jurisdictional objection – binding agreement – extension of time – application dismissed.
Shawn Senior (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Greencross Pty Limited (Respondent).
Background
By way of background, in the lead up to the cessation of the Applicant’s employment, the Applicant entered a guilty plea to charges of indecent dealing with a child under the age of 12 years. On 24 March 2023, following a meeting with the Applicant, the Respondent suspended the Applicant from duty. In a letter dated 24 March 2023 the Respondent said, by way of summary:
it did not have any issues with the Applicant’s work ethic or performance;
it accepted there may be sentencing reasons for entering an early plea and this was a matter for the Applicant and his legal advisors;
despite the strength of the Applicant’s work performance, it had concerns that the Applicant’s actions in pleading guilty to the serious offences may be inconsistent with his continuing employment;
it had concerns that the Applicant’s conduct was in breach of his employment contract and it had concerns about risks to the Applicant’s safety and wellbeing, risks to the safety and wellbeing of other team members and how clients might react;
the Applicant’s guilty plea amounted to serious misconduct;
it was considering summarily dismissing the Applicant;
it would not make a decision until the Applicant had an opportunity to respond to the concerns.
The letter invited a response by 3 April 2023. On 6 April 2023 the Applicant’s lawyers responded to the letter indicating that he denied the allegations despite the guilty plea. The response letter stated:
“12. We are instructed that [the Applicant] does not want to cause any reputational damage to Greencross nor does he want to impact the lives of any of his fellow colleagues.
13.Accordingly, [the Applicant] proposes that he continue to work with Greencross until the sentencing hearing to assist with the orderly transfer of his duties. [The Applicant] will resign (on the terms set out below) prior to the hearing occurring to prevent any exposure for Greencross. [The Applicant] understands that the sentencing hearing will likely occur in approximately 8 weeks.
14. If the above is not agreeable to Greencross, [The Applicant] proposes the following to prevent any exposure to Greencross:
(a) [the Applicant] will resign from his employment, providing 4 weeks’ notice;
(b) [the Applicant] will be paid all of his annual leave entitlements;
(c) [the Applicant] will be paid his pro-rata long service leave pursuant to section 95(4)(b) of the Industrial Relations Act 2016 – that is, [the Applicant] terminates his employment on the basis of a domestic pressing necessity.
15. We are instructed that it is with great reluctance that [the Applicant] is proposing to end his employment with Greencross.
16.We trust that the above proposal is agreeable to Greencross as it is the option that provides closure for all parties.”
The Applicant made an unfair dismissal application on 14 November 2023. The application states that the Applicant was dismissed on 27 April 2023.
On 5 December 2023 the Respondent lodged a ‘Form F4 – Objection to unfair dismissal application’, objecting to the application on the grounds that:
There is a binding settlement agreement that is a bar to the making of the application.
Section 725 of the Fair Work Act 2009 (Cth)(Act) has the effect that the Application cannot be made as the Applicant would appear to have made a claim under another law in relation to the dismissal.
The unfair dismissal application is made out of time.
The Applicant was not dismissed.
The application is manifestly untenable in light of the Applicant’s guilty plea in relation to a criminal offence.
During a case management conference, I discussed with the parties the matters that should be considered as threshold matters and set down directions requiring the parties to file submissions addressing the first three objections set out above. This decision deals with those objections.
Hearing and representation
There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing.
After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the Act) which was was held on 20 December 2023.
The Applicant was self-represented and the Respondent sought permission to be represented by a lawyer. I heard from both parties on the question of representation before the Commission. Having considered the submissions of the Applicant and the Respondent, I determined that allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. Accordingly, at the hearing on 20 December 2023, the Applicant was self-represented and the Respondent was represented by Mr Andrew Cardell-Ree.
In addition to his Form F2 application filed on 14 November 2023, the Applicant filed an outline of arguments on 2 December 2023 and provided a further email response to the Respondent’s further objections raised in the Form F4 in an email dated 10 December 2023. In addition to its Form F4 filed on 5 December 2023, the Respondent filed submissions on 18 December 2023. The Applicant gave evidence on his own behalf.
Is there a binding agreement and should the application be dismissed on this basis?
The Federal Court of Australia has considered that the Commission has the power to dismiss an unfair dismissal application under s.587 where a binding settlement agreement exists. The Court found that a 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] In particular, Basanko J said:
“[31] An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.
[32] It seems to me that the fact of an accord and satisfaction can either be raised under the Act at an ‘interlocutory’ stage and at the final hearing or it cannot be raised at all. As it is a complete answer to a claim there would be no reason why it could be raised at a final hearing but not at a preliminary stage under a section such as s 587.
[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.”
In this regard, s.587 of the Act provides:
“587 Dismissing applications
(1) Without limited 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.
….
(3) The FWC may dismiss an application:
(a)on its own initiative; or
(b)on application.”
Whether a binding agreement was reached is a matter of fact to be determined by the Commission.[2]
The Applicant lodged a number of documents with his application on 14 November 2023, including a Settlement and Release Agreement (Agreement) made between the Applicant and Respondent. The Agreement is signed by the Applicant and Respondent on 27 April 2023 with both signatures witnessed.
Clause 3 of the Agreement provides that the Respondent is to provide certain benefits (as defined in the Agreement) to the Applicant within 7 days after the Applicant signs the agreement and provides his written resignation. Clause 4 states:
“Release: You release, irrevocably, each Beneficiary from all Claims and acknowledge that:
a. the Benefits amount to valuable consideration for entering into this Agreement;
b. any Beneficiary may rely on this Agreement as a complete bar to any Claim; and
c. this Agreement, and the benefits it offers, does not amount to any admission by GX.”
For the purposes of the Agreement, ‘You’ is defined as the Applicant and ‘GX’ is defined as the Respondent. ‘Claims’ is defined at clause 2.3 of the Agreement as follows:
“Claims:
a. means:
i.subject to clause 2.3b., all claims, complaints, allegations, suits, actions, disputes, demands, proceedings, applications, liabilities, damages and/or costs, that, but for this Agreement, you had, have now or may have in the future against any Beneficiary, associated with, arising out of or in any way related to the Employment; and
ii.you making any complaint to, or requesting or cooperating with any investigation by, any other person, body or agency in relation to the Employment; and
b. does not mean or include any statutory or common law workers’ compensation or statutory superannuation claim that you have or may have.”
‘Beneficiaries’ is defined in clause 2.2 of the Agreement to include the Respondent and ‘Employment’ is defined in clause 2.4 as:
‘all aspects of your association with GX, including your employment, your resignation, all matters leading up to the cessation of your employment, and all statutory, contractual or other benefits to which you are or may be entitled as a result of your employment.’
Clause 7(e) of the Agreement provides that the Applicant agrees that he has had the opportunity to obtain his own independent advice about the Agreement.
The Applicant does not deny signing the Agreement and acknowledged that he had obtained legal advice. The Applicant submitted:
if an employment agreement explicitly limits an employee’s right to pursue legal action for unfair dismissal, it may not be automatically enforceable and the Commission considers the overall fairness and legality of such clauses;
he expressed concerns regarding his ability to fully comprehend the terms and implications of the Agreement and believes it is crucial to ensure a thorough understanding of any legally binding document before proceeding;
during the period leading up to the signing of the agreement:
ohe experienced psychological duress;
ohe was told twice that his job was on the line;
ohe was not given notice and a support person was not offered to attend meetings on 22 and 24 March;
ohe was given a 30 hour time limit to sign the Agreement which was provided at 9am on 26 April and needed to be signed by 27 April;
oif he did not sign the Agreement he would have been dismissed and no other options were given to him;
ohe was told he could reapply for his position within 6 months.
The Applicant provided ‘points’ he had taken from his medical notices from physicians he saw after he was suspended from work however did not provide any medical certificates or accompanying evidence. The ‘points’ provided by the Applicant suggest that on 29 March 2023 the Applicant’s doctor recorded a number of symptoms including but not limited to low mood, negative thinking, disturbed sleep and anxiety but recorded the Applicant’s memory and judgement as ‘ok’. The Applicant says that on 5 April 2023 his doctor issued him a medical certificate to indicate that he has a serious mental illness, should not be left alone and should be in the care of his parents over the Easter weekend.
In relation to the suspension letter dated 24 March 2023, the Applicant submitted that this indicates the threat of dismissal was “indeed on the table if [he] did not show cause” and that his response to that letter “may not accurately reflect my true intentions.”
The Respondent submitted that although the Applicant says he did not have the capacity to enter into an agreement, his material does not support this assertion, by way of medical evidence or otherwise, and he was legally represented throughout the period leading up to entering into the Agreement.
The materials filed by the Applicant do not indicate that the Applicant was suffering from a level of mental impairment such that he could not understand the terms of the Agreement. The Applicant had legal advice in the lead up to the cessation of his employment, as evident by the response to the show cause letter drafted by his legal advisors and which offers a resignation on certain terms and he acknowledged during the hearing that he had obtained legal advice. The Respondent’s submissions indicate that the Applicant’s lawyers sought a revision of the reason for the termination to reflect termination ‘by mutual agreement’ and this is not challenged. This suggests a process of negotiation. The Applicant’s submissions of 2 December 2023 indicate that the Applicant’s lawyer forwarded him the Agreement to review and sign. The Agreement is signed and dated. I am satisfied that a binding agreement was reached. The signed Agreement evidences a contract of compromise where the consideration bargained for is an actual release of the cause of action, such that there is a valid accord and satisfaction. As a binding agreement was reached, I am satisfied that the application has no reasonable prospects of success and I dismiss the Application pursuant to s.587 of the Act.
I observe that compliance and enforcement of binding settlement agreements are not matters over which the Commission has jurisdiction. They are matters properly brought before the courts.
Application made out of time
I further note that the Applicant says he was dismissed on 27 April 2023 and made his application on 14 November 2023. There is a question as to whether the Applicant was dismissed, however even if he was dismissed on 27 April 2023, the application was not made within 21 days after the dismissal took effect. The Applicant acknowledges that his application has not been made within the 21 day timeframe.
Under section 394(3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a)the reason for the delay; and
(b)whether the Applicant first became aware of the dismissal after it had taken effect; and
(c)any action taken by the Applicant to dispute the dismissal; and
(d)prejudice to the employer (including prejudice caused by the delay); and
(e)the merits of the application; and
(f)fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
Section 394(3)(a) - Reason for the delay
The Form F2 application lodged by the Applicant suggests that the catalyst for the Applicant making the application was that he learned he was on the Respondent’s ‘do not rehire’ list. In particular the Applicant said in his Form F2:
“It has recently come to my attention that I have been placed on the ‘don’t rehire list’ by Greencross, which has prompted me to explore my legal rights as an ex employee.
I was placed on the aforementioned list without any prior notification or explanation. This action has had a significant impact on my professional reputation, limiting my future employment prospects. It is crucial for transparency that employees are promptly informed about any actions taken against them and provided with an explanation.
Upon researching the implications of being placed on a ‘don’t rehire list’, I have become aware of the concept of constructive dismissal.
However, please understand that my delayed understanding of constructive dismissal and subsequent late lodging of a complaint arose from an honest lack of knowledge regarding my rights as an employee. And the prospect of returning in the future. I am now diligently seeking legal advice and guidance to pursue my case further.”
The Applicant elaborated on this in his submissions lodged on 2 December 2023 in which he said, by way of summary:
he had been told verbally that there would be a chance of him coming back “after 6 months stand down”;
after being asked to reapply for his job and other positions he was getting no response or a rejection response to online applications and sent emails to try and find out why;
he got a phone call telling him he would not be accepted or progress as he was on the “not to be re-employed” list;
this prompted him to explore his legal rights as there was no mention of this when he signed the Agreement.
However, the Applicant’s lawyer suggested a resignation as an option in the lead up to the cessation of the Applicant’s employment. The Respondent submitted that after an exchange of letters with the Applicant’s legal representative the Respondent agreed to the Applicant’s request to re-characterise his resignation as a termination of employment by mutual agreement and, the same day the Respondent and Applicant entered into the Agreement describing the termination as termination ‘by mutual agreement’.
Having regard to the above, I find that the reason for the Applicant’s delay in making his application was because he learned that he was on a list that meant the Respondent would not rehire him, became aggrieved as a result, did some research and formed a view that he was constructively dismissed.
Section 394(3)(b) - Did the Applicant first become aware of the ‘dismissal’ after it had taken effect?
The Applicant signed the Agreement on 27 April 2023 and became aware of the cessation of his employment that day. The terms of the Agreement indicate termination by ‘mutual agreement’. The Applicant may have become aware of the notion of constructive dismissal some time later upon becoming aggrieved and doing further research. It is unclear exactly when the Applicant formed the view he was ‘dismissed’.
I note the Applicant’s lawyer suggested a resignation as an option in the lead up to the cessation of the Applicant’s employment and after signing the Agreement the Applicant has not submitted that an error has been made on the part of the representative.
Section 394(3)(c) – Action taken to dispute the ‘dismissal’
There is no evidence that the Applicant took any action to dispute his alleged dismissal until making his application which occurred 201 days after his employment came to an end.
Section 394(3)(d) – Prejudice to the employer
The Respondent submitted that it is prejudiced by having to address why there are no exceptional circumstances for the Applicant’s failure to lodge the Form F2 and would not have been put to that inconvenience if the Applicant had made his application within the timeframe permitted by s.394(a) of the Act. I am not persuaded by this as the Respondent would still have needed to make submissions turning to the balance of its jurisdictional objections, some of which are more complex than the question of whether an extension of time should be granted.
Section 394(3)(e) – merits
If it was established that the Commission had the jurisdiction to deal with the merits of the application, it is apparent that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[4] and the same applies to s.394(3)(e).
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Section 394(3)(f) Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there would be nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Are there exceptional circumstances having regard to the matters set out in s.394(3) of the Act?
Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[5] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[6]
I note that despite learning of the notion of constructive dismissal some time after recently becoming aware he was on the ‘do not rehire’ list and doing research, the Applicant did have the benefit of legal advice during the events leading up to his dismissal and signing the Agreement and he does not suggest any error on the part of his legal representative. I do not consider that mere ignorance of the law in this regard constitutes an exceptional circumstance. It is apparent that the Applicant did not take steps to challenge the cessation of his employment which appears to have been the subject of negotiation between his lawyer and the Respondent and while he may have learned of the notion of constructive dismissal later, it seems he did not feel a need to take any action to dispute what he says is his ‘dismissal’ until he became aggrieved about being on the Respondent’s ‘do not rehire’ list.
Having regard to all of the matters at s.394(3) of the Act, I am not satisfied that there are exceptional circumstances and as such there is no basis for the Commission to allow an extension of time. This also constitutes grounds for dismissal of the application.
Multiple actions in relation to ‘dismissal’?
Part 6-1 of the Act sets out provisions which prevent multiple actions in certain circumstances. In particular, s.725 of the Act provides that a person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies. The practical effect of these provisions is that the Applicant may be prevented from taking multiple actions in relation to his dismissal (e.g. making an unfair dismissal application and an application or compliant under another law in relation to the same dismissal).
The Applicant has indicated that he has made a complaint to the Australian Human Rights Commission. Despite being invited to the Applicant did not provide a copy of or particulars of that complaint and it is unclear as to whether the complaint is a complaint in relation to his alleged dismissal or not and during the hearing the Applicant inferred that the complaint may be about discrimination more generally rather than a dismissal complaint. As I already have grounds to dismiss the application under s.587 of the Act as described above, I do not need to make a determination in relation to this issue.
Conclusion
The Applicant and Respondent have made a binding agreement, there is a valid accord and satisfaction, I am satisfied that the application has no reasonable prospects of success and I dismiss the Application pursuant to s.587 of the Act. If such grounds were not present, I would otherwise dismiss the application as I am not satisfied that there are exceptional circumstances as a basis for the Commission to allow an extension of time for the making of an application.
COMMISSIONER
Appearances:
Mr S Senior on his own behalf.
Mr A Cardell-Ree on behalf of the Respondent.
Hearing details:
2023.
Sydney (by Video).
20 December.
[1] Australian Postal Corporation v Gorman [2011] FCA 975; 196 FCR 196 at [31].
[2] [2017] FWCFB 4562.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].
[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].
[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].
[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].
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