Alex Amio v Alstom Transport Australia Pty Ltd [2018] FWC 220

1 Fair Work Act 2009 s.394—Unfair dismissal Alex Amio v Alstom Transport Australia Pty Ltd (U2017/11666) SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 11 JANUARY 2018 Application for an unfair dismissal remedy – jurisdictional objection – execution of deed of release – deed of release bars claims under the Fair Work Act 2009 (Cth) – Fair Work Act 2009 (Cth) s.587 – application dismissed. [1] On 1 November 2017, Mr Alex Amio applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against his former employer, Alstom Transport Australia Pty Ltd (the respondent). [2] The respondent raised two jurisdictional objections to Mr Amio’s application, being that his employment was not ‘terminated at the employer’s initiative’,1 and that his application was frivolous or vexatious2 or had no reasonable prospects of success.3 [3] The respondent’s jurisdictional objections were heard today, 11 January 2018. Mr Amio represented himself. Ms Mansfield, a solicitor, appeared for the respondent with permission. [4] Mr Amio gave evidence on his own behalf. The respondent chose not to cross- examine Mr Amio. The respondent tendered evidence from its human resources business partner, Ms Emily Metaxas. Mr Amio cross-examined Ms Metaxas. [5] I gave my decision on transcript at the conclusion of the hearing. This is an edited version of that decision. [6] I am satisfied that the respondent had concerns about Mr Amio’s performance and that he was placed on a Performance Improvement Plan (PIP). [7] On Monday 23 October 2017, the respondent met with Mr Amio and informed him that his employment would be terminated and he would be paid four weeks’ pay in lieu of notice. After further discussion, it was agreed to pay Mr Amio an additional six weeks’ pay, in addition to his statutory entitlements. It was explained to him that he would need to sign a deed of release that would outline the terms on which he would end his employment with the respondent. Mr Amio was told that if he signed the deed of release, the reason for his leaving the respondent’s employment would be recorded as mutual separation, not termination. He [2018] FWC 220 DECISION -- 1 of 4 -- [2018] FWC 220 2 was told that the deed was a legally binding document, and he was advised that he could obtain legal advice if he wished. Mr Amio was given time to consider the Deed. He subsequently signed the Deed and returned it to the respondent. I am satisfied that he was in no way forced to sign the Deed. [8] The Deed included the following: ‘4.1 Document fully satisfies Mr Amio’s rights This document fully satisfies the rights that Mr Amio, and anyone who claims through Mr Amio, has or may have against the Group or any of its officers, employees and agents arising directly or indirectly out of the Employment and the Termination. 4.3 Scope of the release This release (a) covers all claims by, and liability, however described and however arising, including all claims and liability under legislation; … (e) includes (but is not limited to) all claims and liability under the Fair Work Act 2009 (Cth), the Competition and Consumer Act 2010 (Cth), anti-discrimination legislation, or for breach of contract or any common law or equitable claim; … 8.1 No further claim Mr Amio will not make, or assist or procure any other person to make, any further claim or bring any further legal or other proceedings against any member of the Group, or their officers, employees or agents in respect of any matter arising directly or indirectly out of the Employment and the Termination (whether or not such claim or proceeding is presently within the contemplation of any party and whether or not the facts or law giving rise to any such claim are presently within the belief or knowledge of any party); 8.2 Bar to proceedings Each member of the Group and each of its officers, employees and agents may use this document, including as a bar, against Mr Amio in any court or other proceedings brought by Mr Amio (or anyone who claims through Mr Amio)…’ [9] The facts of this case are, in relevant respects, similar to those considered by Hatcher VP in the case of Duraisamy v Sydney Trains.4 In that case, Mr Duraisamy had signed a deed of release which provided a release and discharge by him in favour of Sydney Trains relating to his employment and the termination of his employment. -- 2 of 4 -- [2018] FWC 220 3 [10] Hatcher VP stated at paragraph 18 of his decision: ‘… the effect of the Deed, with its release and indemnity in relation to claims associated with Mr Duraisamy’s employment and its termination, operates as a complete answer to Mr Duraisamy’s unfair dismissal application. In Australian Postal Corporation v Gorman, the Federal Court (Besanko J) said: “[31] An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim. [32] It seems to me that the fact of an accord and satisfaction can either be raised under the Act at an ‘interlocutory’ stage and at the final hearing or it cannot be raised at all. As it is a complete answer to a claim there would be no reason why it could be raised at a final hearing but not at a preliminary stage under a section such as s 587. [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.”’ [11] I note that the Vice President’s decision was subsequently upheld by a Full Bench. [12] I am satisfied that the deed signed by Mr Amio constitutes a ‘valid and effective accord and satisfaction’ as referred to by Besanko J. Under s.587(1)(c) of the Act, the Commission may dismiss an application before it if it has no reasonable prospects of success. In the light of the deed of release entered into by Mr Amio, I do not consider that his application has any reasonable prospects of success. [13] Accordingly, I dismiss Mr Amio’s application. SENIOR DEPUTY PRESIDENT -- 3 of 4 -- [2018] FWC 220 4 Appearances: A Amio in person. J Mansfield and M Azzi, solicitors, for Alstom Transport Australia Pty Ltd. Hearing details: Sydney. 2018. January 11. Printed by authority of the Commonwealth Government Printer <PR599448> 1 Fair Work Act 2009 (Cth) s.386(1)(a). 2 Fair Work Act 2009 (Cth) s.587(1)(b). 3 Fair Work Act 2009 (Cth) s.587(1)(c). 4 [2017] FWC 4824. -- 4 of 4 --