1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Pearse McCaffrey
v
Transdev Melbourne
(C2014/8495)
VICE PRESIDENT WATSON MELBOURNE, 27 MAY 2015
Application to deal with contraventions involving dismissal - Accord and satisfaction -
Whether the Commission has the power to issue a certificate under s.368(3)(a).
Introduction and Background
[1] This decision concerns an application to deal with contraventions involving a
dismissal made under s.365 of the Fair Work Act 2009 (the Act). An application was made by
Pearse McCaffrey on 30 December 2014. Mr McCaffrey contended that he was dismissed by
Transdev Melbourne (Transdev) for refusing to submit to a drug and alcohol test at the
request of Transdev compliance officers and that this was in contravention of ss. 345 and 351
of the Act. Transdev objected to the application on the basis that Mr McCaffrey had been
dismissed on grounds of misconduct following a subsequent incident where he is alleged to
have driven a company vehicle in an unsafe and aggressive manner and also having then
taken the vehicle out of service to attend to personal business without the authorisation of his
employer.
[2] In accordance with s.368 of the Act, a conference was held on 23 January 2015. At the
conference, the parties agreed to settle the matter on the basis of terms set out in a document
headed “Terms of Settlement”. This document was signed by both parties at the conclusion of
the conference. The settlement agreement required Transdev to forward to Mr McCaffrey a
document that confirmed that an investigation was commenced in relation to his refusal to
undergo the drug and alcohol test, that the allegations investigated were not substantiated and
that no action was taken against him in relation to these allegations. The document also
contained a release in favour of Transdev.
[3] Transdev subsequently sent a letter dated 27 January 2015 to Mr McCaffrey’s home
address which it contends complies with the requirements of the settlement document.
[4] A number of emails were sent by my chambers to Mr McCaffrey asking him to advise
of the status of the matter and whether the file with the Commission could be closed. In
response to this correspondence, Transdev forwarded a copy of the letter provided to Mr
McCaffrey to my chambers and advised that it now believed the matter to be closed. Mr
McCaffrey did not respond to this correspondence until an email dated 13 April 2015 which
[2015] FWC 3400
DECISION
AUSTRALIA FairWork Commission
[2015] FWC 3400
2
stated that he did not consider the matter closed and that the Transdev letter provided to him
was not a factual account of the events surrounding the matter.
[5] In response to this correspondence, my chambers emailed the parties and requested
that Mr McCaffrey confirm whether he wished the Commission to issue a certificate to the
effect that all reasonable attempts to settle the matter have been, or are likely to be,
unsuccessful. Mr McCaffrey responded to this email raising a number of issues that he had
with the Transdev letter that had been provided to him and further queries that he had about
the process.
[6] The matter was listed for a telephone report back on 23 April 2015 to discuss the
issues raised. Transdev contended that the matter was resolved and no further action is
available or appropriate. Subsequent to this report back, directions were issued to the parties
requiring them to file submissions on the question of whether the Commission had the power
to issue a certificate under s.368(3)(a).
Statutory and legal context
[7] The basis of the issuing of a certificate arises under s.368(3)(a) of the Act. This section
provides that:
“(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other
than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that
arbitration under section 369, or a general protections court application, in
relation to the dispute would not have a reasonable prospect of success, the
FWC must advise the parties accordingly.”
[8] The issue of whether a settlement resolves a matter before the Commission has been
considered by the Federal Court in relation to an unfair dismissal application. In Australian
Postal Corporation v Gorman and Another, Besanko J of the Federal Court of Australia said
that:1
“[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.
...
[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
[2015] FWC 3400
3
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.”
[9] Section 587 of the Act relevantly provides that:
“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.
Note: For another power of the FWC to dismiss an application for a remedy for unfair
dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC 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) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[10] As this matter concerns an application under s.365 of the Act it is not possible to
dismiss the matter on the grounds in ss. 587(1) (b) or (c). The critical question however is
whether reasonable attempts to resolve the dispute have been successful. If this question is
answered in the affirmative there is no basis to issue a certificate under s.368(3)(a).
Have attempts to resolve the dispute been successful?
[11] Mr McCaffrey submits that Transdev has acted dishonestly throughout the
proceedings and did not act in good faith towards him before the Commission. He submits
that a certificate should therefore be issued under Act. Mr McCaffrey has raised a number of
wording issues regarding the settlement letter but he has not advanced any substantive
grounds which dispute the contention that he reached a binding agreement with Transdev.
[12] Transdev denies the allegations advanced by Mr McCaffrey in relation to its conduct
at the Commission. The company submits that the “Terms of Settlement” document
constitutes a binding agreement by the parties thereby extinguishing the application. It further
contends that the settlement letter provided to Mr McCaffrey fully satisfies its obligations set
out under the settlement agreement as it mirrors the language used in the agreement that was
reached between the parties and signed by them.
[13] The wording of the relevant part of the settlement agreement signed by the parties was
as follows:
[2015] FWC 3400
4
“3.1 The Respondent will within 7 days of the Applicant and the Respondent
signing these terms of settlement, provide the Applicant with a document in relation to
a refusal by the Applicant to perform a drug and alcohol test and an alleged aggressive
interaction with a female colleague. The document provided will outline that the
matters led to the commencement of an investigation, that the allegations were not
substantiated, that the investigation was not continued and that no action against the
Applicant was taken in relation to these allegations.”
[14] The subsequent letter forwarded to Mr McCaffrey on 27 January 2015 reads:
“This letter is to confirm the following:
On 15 October 2014 it was alleged that you initially refused to submit to a Drug and
Alcohol test and that you were alleged to have engaged in an aggressive interaction
with a Transdev employee, [name withheld].
These allegations led to the commencement of an internal investigation into events
surrounding these allegations.
Upon investigation it became clear that these allegations were not substantiated.
As a result, the investigation was swiftly discontinued and no further action was
taken by Transdev Melbourne against you in respect of these matters as no
misconduct had occurred.
We hope this clarifies the events surrounding this matter and that all parties
understand the matter is therefore now fully closed.”
[15] I have no doubt that the parties reached a settlement of the matter in the conference
conducted by me. Further, I considered that Transdev complied with its obligation under the
Terms of Settlement including clause 3.1.
[16] In my view, the dispute under the Act was resolved by the making of the settlement
agreement and the subsequent correspondence from Transdev. It follows that there is no basis
to issue a certificate under s.368 of the Act and that it would be inappropriate to do so. The
file in this matter will be closed.
VICE PRESIDENT
THE OF THE FAIR WORK C. SEN THE NOISS
[2015] FWC 3400
5
Final written submissions:
Transdev Melbourne on 29 April 2015.
Mr McCaffrey on 7 May 2015.
Transdev Melbourne, in reply, on 12 May 2015.
Printed by authority of the Commonwealth Government Printer
Price code C, PR567507
1 (2011) 196 FCR 126.
