Yolette Lester v Sydney Credit Union Ltd

[2013] FWC 7434

[2013] FWC 7434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yolette Lester
v
Sydney Credit Union Ltd
(U2013/5954)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 25 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 25 January 2013, Ms Yolette Lester made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] The matter was listed for conciliation on 11 April 2013, however could not take place as Ms Lester did not attend. The matter was listed for hearing and Ms Lester was directed to file her submissions and witness statement by 27 May 2013.

[3] On 27 May 2013, Ms Lester emailed the Fair Work Commission (the Commission) a copy of an unsigned deed of release, indicating the parties had reached an in-principle settlement agreement. Following this, the Commission made numerous unsuccessful attempts to contact the Ms Lester via telephone regarding the status of the settlement.

[4] As Ms Lester did not file any material as directed, the matter proceeded to a non-compliance hearing on 14 June 2013 before me.

[5] At the hearing, the parties came to an in principle agreement.

[6] On 16 July 2013, Ms Lester informed the Commission that the settlement money had been paid. The Commission advised Ms Lester that a completed Form F50 - Notice of Discontinuance (Form F50) was required to formally close the file.

[7] On 7 August 2013, the Commission sent email correspondence to Ms Lester attaching a Form F50 and reminded her once again that a completed form was required. To date the Commission has not received a completed Form F50.

[8] Having regard to the material before me, I find that there is in existence a binding agreement to settle Ms Lester’s application.

[9] 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.

[10] 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

[11] 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

[12] I am satisfied that in the circumstances where there is a binding agreement between the parties, I should exercise my power under s.587(1)(c) of the Act to dismiss Ms Lester’s application. An order to this effect will be issued shortly.

DEPUTY PRESIDENT

 1 [2011] FCA 975

 2   Ibid at [31]

 3   Ibid at [33]

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