Employee who resigned really dismissed – but unfair dismissal claim struck out due to Deed
A former Linfox employee has failed in his unfair dismissal claim with the Fair Work Commission finding he was dismissed, but that a Deed of Release he signed on the day of the dismissal operated as a complete answer to his claim.
Linfox had argued the applicant had not been dismissed and had instead resigned from the employment. But the Commission heard evidence from the Linfox personnel who effected the dismissal that the decision had been made to terminate the employment and the applicant had no effective choice in the matter. The fact the Applicant elected to write out a letter of resignation in the circumstances did not alter the fact the employment was terminated on the employer’s initiative.
Linfox’s jurisdictional objection on the grounds the applicant was not dismissed was therefore rejected by the Commission. However, the Commission found a Deed of Release the applicant had signed on day of his dismissal meant the unfair dismissal claim had no reasonable prospects of success. The Commission exercised its power under s.587(1)(c) of the Fair Work Act 2009 (Cth) to dismiss the application saying:
The effect of the Release Agreement, with its release and bar to any future proceedings in relation to claims associated with Mr Howell’s employment and, what the Release Agreement described as “the Resignation”, operates as a complete answer to Mr Howell’s unfair dismissal application. Mr Howell signed up to a waiver in circumstances where he knew what a waiver was.