Steven v Donutz4Dayz*
In an earlier blog Steven was dismissed from his employment with Donutz4Days. Steven turned to Turner Freeman Lawyers and they assisted him with his claim.
Steven participated in a conciliation conference and exchanged settlement offers with Donutz4Dayz. They said that they would only pay him compensation if he agreed to release them from all claims arising out of our in the course of his employment. They said that they would provide a Deed of Release that he needed to sign with terms as follow:
- That there was no admission of liability by the Employer;
- That the Parties agreed to resolve all claims, suits, demands and actions arising out of or in the course of the Employee’s employment with the Employer including but not limited to payment of wages, payment of statutory entitlements, superannuation, workers’ compensation and all other possible claims relating to the employment;
- That the Applicant would provide a Notice of Discontinuance to the Fair Work Commission within 1 business day of returning the Deed to the Employer;
- That the Employer would pay to the Applicant the amount of $8,950 within 14 business days of the Applicant providing a Notice of Discontinuance to the Fair Work Commission;
- That the Employee would be able to provide his resignation from employment in lieu of being dismissed from employment;
- That the Parties would agree to mutual non-disparagement; and
- That the Parties would agree to keep the Unfair Dismissal application and circumstances of the end of the employment confidential.
Steven was concerned that this Deed was unfair and asked his solicitor to explain it and whether he should agree to it.
A Deed is a contract between the parties to a dispute setting out the terms on which they are prepared to resolve the dispute.
Steven’s solicitor advised that it was common in her experience for unfair dismissal claims to resolve by way of a Deed of Release, Deed of Agreement or Deed of Discharge. It was not something to be worried about, but it did need to be reviewed by a lawyer.
“No admission of liability”
This expression is commonly used in Deed of Release. It does not mean that Donutz4Dayz did everything right or that Steven was fairly dismissed. Rather, that the Parties agree to resolve the claim without any admission by Donutz4Dayz that they did anything wrong.
Steven’s solicitor advised that she thought it would be highly unlikely that Donutz4Dayz would admit any wrongdoing. He was entitled to ask them to do this, but it was not likely that they would agree to it.
“Resolving all claims”
In the course of the conciliation conference Steven advised his representative that he had $356 owing in unpaid annual leave. He was also entitled to a $5,000 bonus for achieving a sales target and he was entitled to further $200 in reimbursement for money that he had personally spent on stationary for the business.
Steven’s solicitor advised that if he agreed to the Deed as drafted that he would not be able to claim for these entitlements in future. He should consider asking for a carve out clause in the Deed stating that he could pursue payment of these entitlements in a separate application if needed. Alternatively, he could propose a counter-offer of $14,506 which would be inclusive all outstanding entitlements and compensation for his unfair dismissal claim.
” including but not limited to payment of wages, payment of statutory entitlements, superannuation, workers’ compensation”
The words ‘superannuation and workers’ compensation‘ should be deleted from this paragraph. It is not possible to contract out of these entitlements.
‘Notice of Discontinuance’
A Notice of Discontinuance is the document that tells the Fair Work Commission that the worker has resolved their claim and does not want to proceed. It should not be filed until after the Employee has received payment of compensation and the Employer has complied with any other terms of the Deed.
‘Within 14 days of the Applicant providing a Notice of Discontinuance to the Fair Work Commission“
Again, the Notice of Discontinuance should be the last document filed. Steven would be well advised to request payment of the compensation within 14 days of providing the signed Deed to the Employer. He can offer to then provide the Notice of Discontinuance to the Fair Work Commission within 3 days of receiving the payment.
“Resignation in lieu of termination”
In some cases, but not all, it is possible to have the Employee’s termination converted to resignation. This might be helpful if the Employee still needs to find work and is worried about having to disclose that they were dismissed for underperformance or misconduct.
To disparage someone means to say that they are of little worth, to talk down about them, or to belittle them.
Mutual non-disparagement means that neither the Employer nor the Employee can say such nasty things about each other. In many cases it is in the interest of both parties to agree to this. It has the potential to protect the Employer’s reputation and means that the Employee won’t be exposed to negative reviews if future employers call for a referee check.
Steven advised his solicitor that he was worried about the manager at Donutz4Dayz saying nasty things about him because he made a claim in unfair dismissal. His solicitor advised that he should agree to this term of the Deed.
In many cases it is in the interest of both parties to agree to this. It has the potential to protect the Employer from uncomfortable questions about the end of the employment relationship and protects the Employee from having to advise future employers about the claim. It also protects the Employee from having to disclose that he was dismissed from employment.
Given Steven’s concerns about finding work after Donutz4Dayz and the manager saying nasty things about him to future employers, Steven’s solicitor advised him to agree to this term of the Deed.