Thomas Ward v Omnicom Media Group Australia Pty Ltd
[2024] FWC 3403
•6 DECEMBER 2024
| [2024] FWC 3403 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Application for unfair dismissal remedy
Thomas Ward
v
Omnicom Media Group Australia Pty Ltd
(U2024/4981)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 6 DECEMBER 2024 |
Application for an unfair dismissal remedy – settlement agreement – application not discontinued – application to dismiss pursuant to s 399A or s 587 of the Act – application has no reasonable prospects of success – application dismissed.
This decision concerns an application made under s 399A or s 587 of the Fair Work Act 2009 (Cth) (Act) by Omnicom Media Group Australia Pty Ltd to dismiss an unfair dismissal application brought against it by Mr Thomas Ward.
I have determined to dismiss the application pursuant to s 587(1)(c) of the Act, on the basis that it has no reasonable prospects of success. My reasons follow.
Procedural context
On 11 April 2024, the respondent terminated Mr Ward’s employment. Mr Ward filed an application in the Commission for an unfair dismissal remedy pursuant of s 394 of the Act on 2 May 2024.
A conciliation conference was conducted by a Commission conciliator on 3 June 2024. It is not in dispute that at the conference, a settlement agreement was reached between Mr Ward and the respondent. Terms of settlement, prepared by the Commission conciliator, were signed by Mr Ward on 3 June 2024, and by the respondent on 4 June 2024.
The relevant terms of the settlement agreement provide as follows:[1]
By clauses 1 to 3, Mr Ward and the respondent agreed to fully settle Mr Ward’s application for an unfair dismissal remedy.
By clauses 4 and 5, the respondent agreed to pay Mr Ward $8,500, less any tax deducted in accordance with the law, within 7 days of execution.
By clause 8, the respondent agreed to provide Mr Ward with a statement of service within 7 days of execution.
By clause 9, on the respondent complying with clauses 4 and 8, Mr Ward will discontinue his unfair dismissal application.
By clause 10, Mr Ward releases and discharges the respondent and its directors, officers and employees from all claims, actions and liability as specified, on the respondent complying with clauses 4 and 8.
By clause 12, the release given by Mr Ward does not affect any claims he may have under relevant workers’ compensation and superannuation legislation.
The respondent paid the settlement sum to Mr Ward on or about 7 June 2024 (that is, within the 7-day period in clauses 4 and 5 of the settlement agreement).
The statement of service was provided to Mr Ward on 23 June 2024. It is not in dispute that this was more than 7 days after the execution of the settlement agreement. However, Mr Ward did not raise this matter with the respondent as a concern or demand production of the statement of service from the respondent prior to receiving it on 23 June 2024.
Following receipt of the statement of service, on 24 June 2024 Mr Ward wrote to the respondent and advised it of his view that the respondent had breached the settlement agreement by reason of its late production of the statement of service. Mr Ward’s position was that the release in clause 10 had not taken effect. Mr Ward offered to enter into a new settlement agreement with the respondent on terms that included the respondent paying Mr Ward a further sum of money, being an amount which increased following an exchange of correspondence between the parties.
Mr Ward has declined to discontinue his application for an unfair dismissal remedy and now seeks to progress his application in the Commission. At a mention convened before me, the respondent applied for an order dismissing the unfair dismissal application (Dismissal Application) on the basis that:
there is a concluded settlement agreement between the parties, pursuant to s 399A(1)(c) of the Act; or in the alternative,
the application for an unfair dismissal remedy has no reasonable prospects of success, pursuant to s 587(1)(c) of the Act.
The parties filed material addressing the Dismissal Application and the matter was the subject of a hearing on 1 November 2024.
Consideration
It is not in dispute, and I am satisfied having regard to the material before the Commission, that Mr Ward’s unfair dismissal application was settled between the parties. The terms of settlement were reduced to writing in an agreement that was duly executed. The respondent has effected payment of the settlement sum and provided Mr Ward with a statement of service. I consider that the release given by Mr Ward in favour of the respondent is engaged.
Consistent with the well-established position set out by the Federal Court in Australian Postal Corporation v Gorman,[2] the settlement operates as a complete answer to Mr Ward’s unfair dismissal application. It is a valid and effective accord and satisfaction that extinguished Mr Ward’s unfair dismissal application and replaced it with a new cause of action based on the settlement agreement. It follows that Mr Ward no longer has a valid claim under the unfair dismissal provisions of Part 3-2 of the Act that can be pursued in the Commission. Continued pursuit of the unfair dismissal application “is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.”[3]
To the extent that there is a residual dispute between the parties, it relates to the respondent’s purported non-compliance with the terms of the settlement agreement. The performance of obligations under the settlement agreement may give rise to a separate cause of action but in any event, is not a matter that the Commission is empowered to enforce.
Against that context, I record my view that the evidence does not establish that the respondent has engaged in repudiatory conduct by reason of its provision of the statement of service to Mr Ward after the 7-day timeframe had lapsed. While Mr Ward contends that the respondent breached an essential term of the settlement agreement, he accepts that there is no provision in the settlement agreement that is expressed to be essential.[4] Nor is there any arguable basis for the implication of such a term.[5] Time is not said to have been of the essence. Where the respondent breached a non-essential term of the settlement agreement, such breach was remedied, absent any demand from Mr Ward. I note that Mr Ward did not engage with the respondent or purport to avoid the operation of the settlement agreement until after he had received both the settlement sum and the statement of service. The settlement agreement has not at any time been terminated (even were that option available in the circumstances).
Conclusion
Without limiting when the Commission may dismiss an application, s 587(1) of the Act provides that an application may be dismissed if:
(a)the application is not made in accordance with the Act; or
(b)the application is frivolous or vexatious; or
(c)the application has no reasonable prospects of success.
Section 587(1)(c) empowers the dismissal of an application where it has no reasonable prospects of success.[6] The Commission may have regard to settlement agreements when considering whether to dismiss an application under this provision.[7] While the discretion is to be exercised with caution, I am satisfied it should be exercised in this case. The settlement between the parties is an accord and satisfaction and is a complete answer to Mr Ward’s unfair dismissal application. It follows that I am satisfied that Mr Ward’s application has no reasonable prospects of success.
I therefore exercise my discretion to dismiss Mr Ward’s unfair dismissal application under s 587(1)(c) of the Act. There are no relevant matters which weigh against the exercise of my discretion.
Order and disposition
Mr Ward’s application for an unfair dismissal remedy is dismissed pursuant to
s 587(1)(c) of the Act.
DEPUTY PRESIDENT
Appearances:
T Ward, on his own behalf.
J Pembroke-Birss of Norton Rose Fulbright, for the respondent.
Hearing details:
2024.
Melbourne (by video):
November 1.
[1] Witness statement of Ryan Eather dated 18 October 2024 (Exhibit 1), Bundle RE-1 at p. 5-7, 8-10; Applicant’s outline of submissions on Dismissal Application (Exhibit 3) at [2.4]
[2] Australian Postal Corporation v Gorman [2011] FCA 975; 196 FCR 126 per Besanko J
[3] Ibid at [31]-[33]
[4] Exhibit 3 at [1.4] and [4.7]
[5] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
[6] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [19]; Bibawi v Stepping Stone Clubhouse Inc [2019] FWCFB 1314 at [17], (2019) 285 IR 190 at 196; Chopra v Al Siraat College Inc & Ors [2023] FWCFB 266 at [56]; Elecnor Australia Pty Ltd [2024] FWCFB 245 at [20]-[23] and [29]; see further the summary in Application by Mr Prateek Patial [2024] FWC 3388 at [18]-[23]
[7] Australian Postal Corporation v Gorman [2011] FCA 975; 196 FCR 126 per Besanko J at [31]-[33]
Printed by authority of the Commonwealth Government Printer
<PR782127>
0
0
0