William Cross v Egans Asset Management Pty Ltd
[2017] FWC 3293
•20 JUNE 2017
| [2017] FWC 3293 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
William Cross
v
Egans Asset Management Pty Ltd
(U2016/13881)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 20 JUNE 2017 |
Application for relief from unfair dismissal.
[1] On 18 November 2016, Mr William Cross made an application for unfair dismissal remedy in relation to his dismissal under s.394 of the Fair Work Act 2009.
[2] On 29 November 2016, Egans Asset Management filed their response to the application for unfair dismissal remedy.
[3] Conciliation was listed on 15 December 2016 however could not take place. Directions were issued and the matter was listed for hearing on 17 February 2017.
[4] The matter was listed for Telephone Mention before me on 8 February 2017 at 9.30 am where the matter settled between the parties.
[5] Mr Cross attended the Commission shortly after the Telephone Mention and signed the Terms of Settlement. A copy of the Terms was sent to Egans Asset Management for execution and return.
[6] The Terms set out an agreement between Mr Cross and Egans Asset Management. Under the Terms, Mr Cross released Egans Asset Management from any claims in relation to Mr Cross’ employment, termination and events leading to the termination.
[7] On 10 February 2017, Egans Asset Management emailed my chambers a copy of the executed Terms and confirmed “all moneys have been paid as of today as per the terms of settlement.”
[8] On 13 February 2017, my chambers posted to Mr Cross a full copy of the executed Terms of Settlement.
[9] On 2 March and 19 April 2017, my Associate telephoned Mr Cross and a message was left on his voicemail requesting he contact chambers.
[10] On 27 March and 19 April 2017, my Associate sent a SMS message to Mr Cross’ mobile phone requesting he file a Notice of Discontinuance.
[11] On 2 March, 17 March, 19 April and 17 May 2017, my Associate forwarded mail correspondence to Mr Cross requesting he file a Notice of Discontinuance.
[12] On 6 June 2017, my Associate forwarded the following mail correspondence to Mr Cross:
“I refer to settlement of your matter.
I note you executed the Terms of Settlement on 8 February 2017 and the Respondent executed same on 10 February 2017. The Respondent also confirmed by email that all monies had been paid to you as per the Terms on 10 February 2017. A copy of the email and Terms of Settlement are attached.
I note you have been requested numerous times to file a Notice of Discontinuance with the Commission. Some time has passed since our requests and our records still indicate that you have not yet filed a Notice of Discontinuance.
You may be eligible to receive a refund of your filing fee if you file a Notice of Discontinuance before close of business Monday 19 June 2017.
To notify the Commission that you wish to discontinue your application, you should do one of the following:
● sign and return to the Commission the enclosed Notice of Discontinuance within 10 days; or
● call chambers on 03 8656 4525 to discontinue your application by telephone; or
● send a letter, email or fax to the Commission confirming your wish to discontinue.
If the Commission does not hear from you by close of business on Monday, 19 June 2017 a decision will be issued by Deputy President Gooley to dismiss your matter without further notice to you.”
[13] Mr Cross didn’t file a Notice of Discontinuance or provide any submissions as to why his application should not be dismissed.
[14] Having regard to the material before me, I find that there is, in existence, a binding agreement to settle Mr Cross’ application.
[15] 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.”
[16] 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
[17] 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
[18] I am satisfied that in the circumstances where there is a binding agreement between the parties and where Mr Cross has received the benefits of that agreement, I should exercise my power under s.587(1)(c) of the Act to dismiss Mr Cross’ 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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