FWA 3973
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Kevin Banister
Queensland Rail Limited
BRISBANE, 9 MAY 2012
Application for unfair dismissal remedy - Fair Work Act s.587 - Application for unfair dismissal application to be dismissed - Terms of settlement signed by Applicant - Terms of settlement binding - Accord and satisfaction extinguishes cause of action - Application is frivolous, vexatious or has no reasonable prospects of success - Failure of applicant to comply with directions - Unfair dismissal application dismissed.
 This decision concerns an application under s.587 of the Fair Work Act 2009 (the Act) for Fair Work Australia (FWA) to dismiss an application for an unfair dismissal remedy by Mr Kevin John Banister. Mr Banister filed his application for an unfair dismissal remedy on 7 July 2011, in respect of his dismissal by Queensland Rail Limited (QR).
 A conference was conducted on 9 September 2011 by an FWA Conciliator. Material on the file indicates that a settlement was reached between the parties. A deed setting out the agreed terms of settlement was forwarded to Mr Banister, who signed the deed of settlement, but did not have his signature witnessed. QR Limited subsequently corresponded with the FWA Conciliator requesting that he arrange to have Mr Banister sign the deed again and have his signature witnessed.
 The file contains a note from a member of the FWA Unfair Dismissals Team indicating that Mr Banister refused a request to sign the deed again and have his signature witnessed, and that the matter was required to be listed for arbitration. QR corresponded with the Unfair Dismissals Team indicating a view that a binding settlement had been reached and that a sum of $3,178.88 (less tax) had been deposited to Mr Banister’s bank account. QR also indicated that before the matter proceeded for formal hearing it would seek to be heard in relation to the contention that the matter had been settled, and that should the matter proceed, it would seek to have it dismissed on the grounds that actions by Mr Banister to pursue the unfair dismissal application are frivolous and vexatious.
 Significant efforts to contact Mr Banister were made by members of the Unfair Dismissals Team and my Associate to discuss his intentions with respect to his application, and the implications of the correspondence from QR. The matter was listed for Directions/ Conference, by telephone, on 20 October 2011 and a Notice of Listing was sent by Express Post to Mr Banister’s address contained on the file, which was care of a Holiday Park in Kalgoorlie, Western Australia. The Express Post envelope was returned to Fair Work Australia with the words “Return to sender - no longer at this address” stamped on the front of the envelope.
 My Associate then made several attempts to contact Mr Banister on his mobile telephone, leaving voice-mail messages requesting him to call back urgently. Calls were also made to the Holiday Park at which Mr Banister had indicated that he was residing, requesting a message be given to him to call back urgently. On 19 October 2011, a facsimile was received from the Holiday Park advising that Mr Banister no longer resided there and that he had not left a forwarding address.
 On 20 October 2011, prior to the commencement of the Directions/Conference, attempts were made by my Associate to contact the Applicant on his mobile telephone, however the Applicant was unable to be contacted, and several messages were left for him to call back urgently. On the basis of the non-attendance of Mr Banister, the Directions/ Conference was cancelled.
The application to dismiss
 On 21 October 2011 QR made an application under s.587 of the Act seeking that Mr Banister’s application for an unfair dismissal remedy be dismissed, on the grounds that the application is frivolous, vexatious or has no reasonable prospects of success.
 Further attempts were made to contact Mr Banister and my Associate resorted to sending him a text message from her own mobile telephone, requesting that he urgently advise his current address, and to contact FWA on my Chambers’ telephone number. Mr Banister responded to that text message and advised an address in Geraldton, Western Australia.
 On 24 October 2011 the matter was listed for Directions/Mention by telephone, at 2.00pm on Wednesday, 2 November 2011. The Notice of Listing was sent by Express Post to the address in Geraldton advised by Mr Banister.
 On 2 November 2011, prior to the commencement of the Directions Conference, unsuccessful attempts were made by my Associate to contact Mr Banister on his mobile telephone, and several messages were left for him to call my Associate on my Chambers telephone number.
 On 4 November 2011 at 11.00am the Registry was directed by me to sent a text message to the Applicant’s mobile telephone in the following terms:
“Mr Banister, you are directed by Commissioner Asbury to telephone the Commissioner’s Chambers on 07 3000 0355 and provide a current mailing address. You are required to provide this information by 1.00pm on Friday 4 November 2011.”
 On 4 November 2011 at 11.50am my Associate received a text message from the Applicant on her personal mobile telephone, advising an address in Cloncurry, Queensland. Mr Banister was requested to cease communicating by way of my Associate’s mobile telephone and to use the Chambers telephone number provided to him on numerous occasions, and failed to comply with this request on the few occasions he responded to communications.
 On 4 November 2011 a Notice was issued listing QR’s application to dismiss the Mr Banister’s unfair dismissal application, for hearing at 10.00am on Monday 12 December 2011. The Notice of Listing was sent to Mr Banister by Express Post to the address in Cloncurry advised by him. Directions were attached to the Notice Listing, requiring QR to provide submissions and witness statements in writing by no later than 4.00pm on Friday 18 November 2011 in support of the application to dismiss Mr Banister’s unfair dismissal application. Mr Banister was requested to provide submissions in response and witness statements in writing by no later than 4.00pm on Friday 2 December 2011. A Notice to Mr Banister was included in the Directions in the following terms:
“Should Mr Banister fail to provide the material as set out in 4. above by the due date, or fail to attend the hearing listed on 12 December 2011 without a reasonable excuse as set out in 6.2 above, the matter will be determined on the material filed by QR, and his application for an unfair dismissal remedy may be dismissed.”
 On 17 November 2011 my Associate received a telephone call (again on her mobile telephone) from an officer from the Cloncurry Legal Service, advising that Mr Banister had presented himself in their offices, seeking legal advice in relation to his application. The officer from the Cloncurry Legal Service had lengthy conversations with both by Associate and myself, and those conversations were concluded on the basis that Mr Banister would likely discontinue his application. A completed Notice of Discontinuance was sent to the Cloncurry Legal Service, to be signed and returned by Mr Banister. That notice has not been received by FWA.
 Written material was received from QR on 18 November 2011, as required by the Directions. No written material has been received from Mr Banister and he has not made contact with FWA to advise of the reasons for his failure to comply with the Directions. The matter was heard on 12 December 2011. An appearance was recorded by Mr D. Finger, representing QR. Mr Banister did not appear. I indicated during proceedings that it was my intention to dismiss his application and to issue written reasons for that Decision. This Decision sets out those reasons.
 Fair Work Australia may dismiss an application pursuant to s.587 of the Act which is in the following terms:
(1) Without limiting when FWA may dismiss an application, FWA 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.
(2) Despite paragraphs (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) FWA may dismiss an application:
(a) on its own initiative; or
(b) on application.”
 QR provided an Outline of Submissions and a Witness Statement of Damien John Finger, the General Manager Rail Operations Human Resources at Queensland Rail in support of the application to dismiss. Mr Finger stated:
● At a conference before an FWA Conciliator on 9 September 2011, agreement was reached to settle Mr Banister’s application on terms reflected in a “Terms of Settlement” document drafted by the Conciliator.
● Mr Finger considered that the parties had agreed to verbally settle Mr Banister’s application at the conclusion of the conference on 9 September 2011.
● On 12 September 2011 the FWA Conciliator forwarded to QR a copy of the “Terms of Settlement Document” also signed by Mr Banister and dated 9 September 2011.
● On receipt of that document, Mr Finger believed that the matter had been settled and that Mr Banister agreed to the settlement, but noted that Mr Banister’s signature had not been witnessed.
● Mr Finger contacted the FWA Conciliator to request that he arrange for Mr Banister to sign the document again and have his signature witnessed, “for completeness”.
● Mr Finger was informed in an email from the FWA Conciliator that he had contacted Mr Banister and that Mr Banister had agreed to sign the “Terms of Settlement” document again and have it witnessed.
● On 14 September the FWA Conciliator informed Mr Finger by telephone that Mr Banister had changed his mind and did not wish to settle the application, and this was confirmed by email on 19 September 2011.
● Notwithstanding this advice, QR signed the terms of settlement on 21 September and forwarded it to Mr Banister together with a letter informing him that QR considered that the matter had been settled and had arranged for the agreed settlement amount of $3,178.88 (less applicable tax) to be deposited to his account in satisfaction of the Agreement.
● QR subsequently deposited the settlement amount into Mr Banister’s bank account and Mr Banister has retained that amount and has not sought to repay it.
 The “Terms of Settlement” document appended to Mr Finger’s witness statement states:
1. The Applicant has made an application to Fair Work Australia for a remedy alleging the Applicant was protected from unfair dismissal and was unfairly dismissed.
2. The Respondent denies the allegations.
3. The Applicant and the Respondent agree to fully and finally settle the matter on the following bases:
3.1 The Respondent will pay to the Applicant the $3178.88 gross; taxed according to applicable law, within 14 days of receiving this agreement signed by or on behalf of the Applicant.
3.2 On the Respondent complying with its obligations under 3.1 above, the Applicant forever discharges and releases the Respondent, its directors, employees, assignees or successors from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant’s employment with the Respondent, including but not limited to the cessation of the employment.
3.3 The Respondent forever discharges and releases the Applicant from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant’s employment with the Respondent, including but not limited to the cessation of the employment.
3.4 Nothing in the provisions of these terms of settlement affects any entitlement the Applicant has under workers compensation legislation or superannuation legislation.
3.5 The Applicant and the Respondent will keep the provisions of these terms of settlement, and any information relating to the employment, confidential, provided that they may disclose the provisions to their legal or financial advisers or any other person that by law must be informed of the provisions.
3.6 Neither the Applicant nor the Respondent will disparage or denigrate the other.
4. This agreement is an agreement in principle and is of no legal effect until it is executed by both parties.
5. This agreement will be taken as being executed if each party holds a copy signed by the other party, even though the signatures of both parties do not appear on the same copy.
 The document appended to Mr Finger’s witness statement is ostensibly signed by Mr Banister and dated 9 September 2011.
 QR submits that the agreement made at the conciliation conference on 9 September 2011 is a binding contract, consistent with the principles laid down by the High Court in Masters v Cameron 1. QR further submits that pursuit of an unfair dismissal claim after agreement to settle is frivolous and vexatious, consistent with the decision of the Federal Court in Australian Postal Corporation v Gorman2 and that it would be unconscionable for Mr Banister to be allowed to pursue his application in circumstances where he has reneged on his agreement and refused to sign the terms of settlement, without advancing a valid application for this conduct.3
 On the basis of the evidence of Mr Finger, and the authorities set out above, QR also submits that pursuant to s.587 of the Act, the application for unfair dismissal remedy be dismissed on the basis that the matter had settled and that subsequent actions to pursue this matter by the Applicant are vexatious and without reasonable cause.
 Mr Banister has consistently failed to comply with requests to contact FWA and with Directions issued in relation to his application. Further, Mr Banister has failed to comply with Directions in relation to the application by QR to dismiss his application. Mr Banister’s failures have occurred notwithstanding extensive efforts on the part of the staff of FWA to communicate with him and to warn him about the repercussions of his conduct.
 After considering all of the material on the file, and the evidence of Mr Finger, I am satisfied that at the conciliation conference on 9 September 2011, a binding contract was entered into between QR and Mr Banister in relation to the settlement of his unfair dismissal application. That contract is of the type identified by the High Court in Masters v Cameron where:
“...the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of the formal document.”
 On the basis of the material on the file, I am satisfied that a formal document recording the agreed settlement has been executed. There is no evidence that Mr Banister disputes the signature on the document or that he signed it. Further, there is no evidence that Mr Banister was under duress when he signed the document or that he did not understand its terms. Mr Banister’s signing of the document was facilitated by an experienced FWA Conciliator and I do not doubt that the implications of the settlement were explained to him in accordance with the usual practices of Conciliators. I am also of the view that the fact that Mr Banister did not have his signature witnessed, does not invalidate the agreement he signed. QR has paid the settlement amount in reliance on the signed agreement and Mr Banister has accepted that amount, and has made no effort to repay it.
 In Australian Postal Corporation v Gorman 4 Justice Besanko accepted that an accord and satisfaction had been reached, in circumstances where parties in an unfair dismissal application had advised a member of FWA that they had reached a settlement agreement, and that a deed of settlement would be entered into after some “toing and froing” and the applicant had subsequently refused to execute the deed. His Honour said that:
“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 s.587 are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid 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, vexatious or without reasonable prospects of success.” 5
 In the present case, the “Terms of Settlement” document was executed by Mr Banister and the settlement amount was paid. It is clear from the executed document that it is a contract of compromise where the consideration bargained for is an actual release of the cause of action, 6 such that there is an accord and satisfaction. Further, there is no basis upon which I could be satisfied that there is a valid explanation for Mr Banister reneging on the agreement he reached. In the circumstances, Mr Banister’s unfair dismissal application is frivolous or vexatious, and has no reasonable prospects of success, on the basis that the cause of action has been extinguished. It would also be unconscionable in the circumstances of this case, to allow Mr Banister to maintain his action, in circumstances where he has advanced no valid reason for seeking to do so, despite having been given every opportunity to explain his position.
 In all of the circumstances I am satisfied that the power for the Tribunal to dismiss the application upon the grounds in s.587(1)(b) and (c) is triggered and that it should be exercised. The application for an unfair dismissal remedy lodged by Mr Kevin John Banister (U2011/9790) is dismissed. An Order to that effect will be issued with this Decision.
Mr D. Finger and Ms E. Harward on behalf of Queensland Rail Limited.
1 (1954) 91 CLR 353.
2  FCA 975.
3 Australian Taxation Office v Annunziata Zoiti PR960411  AIRC 636.
4  FCA 975.
5 Ibid at  - .
6 Butler v Fairclough (1917) 23 CLR 78.
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