Sylvia Podesser v Peters Ice Cream
[2016] FWC 7813
•27 OCTOBER 2016
| [2016] FWC 7813 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Sylvia Podesser
v
Peters Ice Cream
(U2016/10912)
COMMISSIONER WILSON | MELBOURNE, 27 OCTOBER 2016 |
Application for relief from unfair dismissal - no reasonable prospects - application dismissed pursuant to s.587.
[1] On 14 July 2016, Mrs Sylia Podesser made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). That application was assigned matter number U2016/9446, and disclosed the Respondent to be Australian Food Group Pty Ltd, trading as Peters Ice Cream.
[2] A conciliation conference was held before a Fair Work Commission conciliator on 10 August 2016, where Commission records indicate the matter settled for non-monetary consideration. The application was then discontinued by Mrs Podesser’s representative on 15 August 2016.
[3] On 1 September 2016, a further application was lodged by Mrs Podesser under s.394 of the Act and assigned matter number U2016/10912, which is the subject of this decision. This more recent application essentially re-agitates the same application for unfair dismissal remedy as that in U2016/9446, although notably the application indicates Mrs Podesser to no longer be represented. There is no mention of or dispute as to the outcome of the prior conciliation conference in the application.
[4] On 17 October 2016, my Chambers issued written correspondence to the Applicant highlighting the foregoing sequence of events, and drawing to her attention s.587 of the Act, together with the Full Bench decision of Curtis v Darwin City Council 1, a decision which referred to the decision of the Federal Court in Australian Postal Corporation v Gorman2, being authority for the proposition that a binding settlement between parties to an unfair dismissal application may preclude the furtherance of the application for reason of it not having reasonable prospects of success. That correspondence sought further information from Mrs Podesser specifically detailing the outcome and extent of agreement reached in the conciliation conference on 10 August, with advice on the matter requested by 24 October 2016. Mrs Podesser has not responded to that correspondence.
[5] Having regard to the material before me, I find that there is, in existence, a binding agreement to settle Mrs Podesser’s application. Her original application was conciliated and apparently resolved, and subsequently discontinued by her former representative. There is nothing before me to suggest that the agreement reached in that conciliation was not binding on the parties.
[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, 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 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
[8] I am satisfied that in the circumstances where there is a binding agreement between the parties, and in the absence of any material to the contrary, I should exercise my power under s.587(1)(c) of the Act to dismiss Mrs Podesser’s application. An order to this effect will be issued in conjunction with this decision.
COMMISSIONER
1 [2012] FWAFB 8021.
2 [2011] FCA 975.
3 Ibid at [31].
4 Ibid at [33].
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