Wayne Neal v Light Pass Enterprises Pty Ltd

[2015] FWC 2930

[2015] FWC 2930

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wayne Neal
v
Light Pass Enterprises Pty Ltd
(U2015/2523)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 APRIL 2015

Application for relief from unfair dismissal.

[1] Mr Wayne Neal alleged that he had been unfairly dismissed. In its response to the application for an unfair dismissal remedy Light Pass Enterprises Pty Ltd objected to the application because it submitted that Mr Neal was not dismissed and Mr Neal had entered into a binding settlement agreement with it.

[2] A copy of the Deed was attached to Mr Neal’s application. The Deed provided that Mr Neal would resign his employment and be paid an amount of monies. Mr Neal provided a signed resignation and was paid the monies owed.

[3] On 13 March 2015, a solicitor for Mr Neal advised that he would be seeking an order of the Federal Circuit Court to have the deed of release set aside and asked that the directions issued in this matter be stayed.

[4] On 19 March 2015, I caused a letter to be sent to the parties in which I advised that I was considering whether I should, of my own motion, dismiss the application under section 587 of the Fair Work Act 2009 because it had no reasonable prospect of success. The parties were referred to the decision of the Full Bench in Curtis v Darwin City Council 1 and the decision of the Federal Court in Australian Postal Corporation v Gorman.2

[5] At the hearing of the matter Mr Neal gave evidence and was cross examined.

[6] On 29 December 2014, Mr Neal was set an invitation to attend a disciplinary meeting. Mr Neal had on 18 November 2014 advised Light Pass, after driving a fuel truck from Newcastle to Tamworth, that his doctor had told him that due to his medical condition he should not drive for three months and he was going to cancel his licence. Mr Neal’s licence was not in fact cancelled. The letter advised Mr Neal that his conduct was potentially seen as serious misconduct and could lead to the termination of his employment without notice. He was invited to a meeting and he was advised he could bring a support person to the meeting. 3

[7] It was Mr Neal’s evidence that he attended the meeting with his wife as his support person. He did not give any evidence about what occurred at the meeting other than there had been no discussion of any payment of any money to him.

[8] Mr Neal’s evidence in chief was that on 31 December 2014 Ms Jodie Urwin rang him and told him that his employment was to be terminated. He was asked to come to the office. 4

[9] Mr Neal’s memory of what happened on that day was not clear. In cross examination, he accepted that Ms Urwin rang him and asked him if he was prepared to have a without prejudice conversation. He agreed. He agreed that she discussed with him leaving his employment. He agreed they discussed him resigning his employment in exchange for the payment of money. He agreed that he was told he would have to sign a legal agreement. He told Ms Urwin that he would need to discuss this with his wife. He agreed that he rang Ms Urwin back and told her that he would accept the offer if in addition to the amount discussed he would also be paid for the public holidays. Ms Urwin agreed. Mr Neal said he was told to come in that afternoon at 3pm to sign the document.

[10] Mr Neal agreed that he prepared the resignation letter and took it with him. He agreed that he read the document before he signed it. He said he was a justice of the peace. He agreed that he did not tell Ms Urwin that he did not understand parts of the document.

[11] Mr Neal said that clause 8(d) of the Deed which provides:

the parties acknowledge that “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”

was not pointed out or advised to him and he said there was no opportunity to carefully consider its contents. 5

[12] It was his evidence that he did not understand the Deed. He said Ms Urwin made it clear to him at that meeting that he would not be getting his job back. Mr Neal said he signed the Deed because he needed the money due to the time of the year and because he had not been paid for four weeks. He said he was in a difficult financial position.

[13] Ms Urwin gave evidence about the telephone conversation and the meeting on 31 December 2014. 6 She was not cross examined on her version of the conversation with Mr Neal. Ms Urwin accepted that Light Pass had decided that it wanted to end Mr Neal’s employment. She did not accept that Mr Neal was presented with a fait accompli. She said that Mr Neal did not have to sign the Deed. She gave evidence that Mr Neal was going to sign the Deed without reading it and she told him he needed to read it before signing it. She said Mr Neal provided her with a signed resignation before he signed the Deed.

[14] I accept Ms Urwin’s evidence about her conversations with Mr Neal.

Submissions of Mr Neal

[15] Mr Neal submitted that he had little choice but to accept the offer made by his employer. It was submitted that Light Pass was in a stronger bargaining position and Mr Neal was not provided with any opportunity to obtain legal or other advice. It was submitted that the Deed should be set aside.

[16] It was submitted that Light Pass was in a position to influence and/or pressure Mr Neal to sign the Deed and the letter of resignation otherwise he would not be paid the monies.

[17] It was submitted that Light Pass, by requiring the execution and the letter of resignation before the monies were paid, was illegitimate given Mr Neal had a limited opportunity to obtain legal advice.

[18] It was submitted that Mr Neal was constructively dismissed because he was not given a real choice.

The submissions of Light Pass

[19] It was submitted that Mr Neal attended a without prejudice meeting on 31 December 2014 at which he accepted the proposal to resign his employment and accept a settlement sum. At that meeting, Mr Neal provided a letter of resignation which he had prepared.

[20] Light Pass submitted that Mr Neal was not dismissed but voluntarily resigned his employment. It submitted that there was a binding agreement between the parties which settled all of Mr Neal’s claims including any claim for unfair dismissal.

[21] It submitted that Mr Neal did not suffer, during the telephone conversation or the meeting on 31 December 2014, duress or undue influence.

[22] Mr Neal did not alert Light Pass to the possibility that he was not entering the Deed freely or on his own volition.

[23] It was submitted that Mr Neal was free to seek legal advice or to take further time to consider the Deed. It was submitted that Mr Neal attended the meeting with his resignation letter already prepared.

[24] Light Pass submitted that the Fair Work Commission has the power to dismiss a matter where there is a signed agreement and both Mr Neal and Light Pass have complied with their obligations under the Deed.

Consideration

[25] In Australia Post v Gorman 7 it was accepted that the Commission has the power to dismiss an application where terms of settlement have been reached between the parties to an unfair dismissal application.

[26] In Mladen Stupar v Australia Postal Corporation 8 I found that the Commission is not empowered to set aside a signed agreement.9

[27] However, as was found in Gorman this “is not a reason to conclude that FWA cannot recognise a binding agreement." It might mean that in a particular case FWA will adapt its remedies, that is a temporary stay rather than a dismissal, to meet the particular circumstances.” 10

[28] I consider that the fact that the settlement was reached before the unfair dismissal claim was lodged does not alter the principles set out in Australia Post v Gorman. A binding settlement agreement is a complete answer to an unfair dismissal claim and it means that the claim is capable of being considered to be frivolous or vexatious or without reasonable prospects of success.

[29] In this matter Mr Neal gave evidence that he read the document before he signed it. He gave evidence that he was a Justice of the Peace and understood the need to read the document first.

[30] The Deed contains a full release excluding workers compensation matters. It was not put that an unfair dismissal claim was not within the contemplation of the parties when the Deed was entered into.

[31] The Deed provided that the parties to the Deed had “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.”

[32] I accept Ms Urwin’s evidence that Mr Neal could have taken the Deed away with him if he wished to obtain independent advice. I do not accept that Mr Neal can now resile from the representation he made to Light Pass when he signed the Deed.

[33] Mr Neal came to the meeting with his letter of resignation prepared. He provided that to Light Pass. He has been paid the monies due under the Deed.

[34] This was not a case where an employee is faced with a resign or else situation. I accept that Light Pass had made a decision that it wanted Mr Neal’s employment to end, but I accept Ms Urwin’s evidence that what would happen if Mr Neal did not agree to resolve the dispute had not been determined.

[35] I accept that Mr Neal and Ms Urwin entered into negotiations about the ending of Mr Neal’s employment on 31 December 2014. I accept that these negotiations occurred in the context of an earlier disciplinary meeting where Mr Neal was on notice that his employment may be terminated. Ms Urwin made an offer to Mr Neal. Mr Neal was told at this time that he would be required to enter into a legal document that reflected their agreement. He was not required to accept the offer on the spot. Mr Neal took the opportunity to discuss the offer with his wife. There was nothing to prevent him seeking other advice at this time. He then contacted Ms Urwin and put a counter proposal to her which was accepted. He was told that arrangements needed to be made for him to come in and sign the document. I prefer Ms Urwin’s evidence that there was no requirement that Mr Neal do that on the same day. I accept that Mr Neal agreed to come in that day.

[36] I consider that Mr Neal’s claim for an unfair dismissal remedy has no reasonable prospects of success. In signing the Deed, Mr Neal agreed not to take any further proceedings against Light Pass in relation to his employment apart from any workers compensation claim. I am not satisfied that I should ignore the Deed and permit this matter to proceed.

[37] It was put that if I formed this view I should stay the application to enable Mr Neal to make an application to a court to have the Deed set aside. No submissions were made by Light Pass in opposition to this proposal. I do note that Mr Neal’s representative had advised in March that such an application would be made but this has not occurred to date.

[38] However, given there was no opposition to this proposal I will not dismiss Mr Neal’s application immediately. However unless I am advised by close of business on 13 May 2015 that proceedings have been commenced in a court to have the deed set aside I will issue a decision dismissing Mr Neal’s unfair dismissal application and an order to that effect will be issued without further reference to the parties.

DEPUTY PRESIDENT

Appearances:

R. de Meyrick for the Applicant.

R. Hassall for the Respondent.

Hearing details:

2015.

Melbourne and Sydney, by video link.

27 April.

 1   [2012] FWAFB 8021

 2 [2011] FCA 975

 3   Exhibit A1 at annexure G

 4   Exhibit A1 at [16]

 5   Exhibit A1 at [16]

 6   Exhibit R1 at [8]

 7   Australia Post v Gorman op cit

 8   [2015] FWC 1090

 9   Ibid at [37]

 10   Australia Post v Gorman op cit at [35]

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