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Deed of Release prevented claim against Employer

Background

In a recent Federal Circuit Court decision, a college teacher who claimed she was suffering from a psychological disability attempted to render her Deed of Release – signed in 2007 – invalid. However, due to a lack of medical evidence her claim was unsuccessful.

The Facts

In essence:

  • The employer said it no longer trusted the college teacher to exercise her duties after various performance issues and a work-related incident.
  • The employer invited the college teacher to resign and sign a deed of release describing it as a ‘retirement’, or alternatively dispute the school’s decision.
  • The college teacher signed the deed in 2007.
  • The college teacher commenced a disability discrimination claim against the employer in March 2017. The employer disputed the claim and relied upon the Deed of Release.
  • The college teacher claimed that she had been suffering from an ‘incoherent state of mind’ at the time of signing the Deed, and submitted that it should not be enforceable
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FWO flags review of abandonment clauses in Awards

The Fair Work Commission has indicated that it will conduct a review of abandonment clauses contained in six modern awards, following the decision of the Full Bench of the Fair Work Commission in Benias v Iplex Pipelines Australia Pty Ltd [2017] FWCFB 38.

In the decision, the Full Bench overturned the decision of Senior Deputy President O’Callaghan ([2016] FWC 6624), who dismissed an employee’s unfair dismissal claim on the basis that the termination was not at the initiative of the employer.

The facts

Section 386 of the Fair Work Act 2009 defines a dismissal as a termination of employment ‘on the employer’s initiative’. The Act provides that where an employee’s employment is not terminated on the employer’s initiative (i.e. a voluntary resignation), that employee is unable to pursue a remedy for Unfair Dismissal.

The employee in question had failed to show up for his shifts for a fortnight without explanation, leading the employer to conclude that the employee had abandoned his employment. The employer relied upon a clause in the Manufacturing and Associated Industries and Occupations Award 2010 (‘the Manufacturing Award’), which provides:
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