the irresistible conclusion is that the employee was not treated fairly even if there was a legitimate basis for making the employee's position redundant, which in the present case was a desire to amalgamate two divisions of the business under one human resources function.
35 Notwithstanding this conclusion we do not consider that Staff J was in error in finding that the appellant's signature on the Release was not obtained by duress. Nor do we consider the unfairness engaged in by the respondent was such that its effect on the appellant caused her to act against her own best interests in signing the Deed. Undoubtedly, the appellant was in an unequal bargaining position vis a vis the respondent and she felt she needed the money. However, there was no evidence that Ms Small was in dire financial straits. On the contrary, a short while after the termination of her employment she contributed $30,000 towards setting up a business in partnership with Ms Nightingale.
36 Moreover, the appellant could not have been under any misapprehension that in signing the Deed she was giving up her rights to pursue any cause of action arising out of or touching on or concerning the matters in the Deed. Ms Small held a reasonably senior position in human resources with the respondent and prior to that was a senior recruitment consultant with Morgan & Banks. The respondent's practice was to secure Deeds of Release where the employment of senior personnel was terminated. It is impossible to accept she would not have understood the implications of signing the Deed.
37 Further, it is to be accepted that the respondent provided the appellant with a copy of the draft Deed of Release (on 15 April 2002) three days before she executed it. The respondent suggested the appellant seek legal advice in relation to the draft Deed of Release, which she did. That the appellant was content to receive the advice over the phone rather than have the solicitor properly examine the terms of the draft Deed was the appellant's choice. Further, that the solicitor's advice may have been lacking, cannot make the respondent blameworthy in that respect.
38 We accept that there is some parallel between the circumstances under which the appellant signed the Release in this case and the circumstances in Cukeric that are described by the Full Bench at 457:
In making its later 'offer', the Company advised Mr Cukeric that unless it was accepted within 7 days, accompanied by a release in the Company's favour, it would not make the payments proposed but would pay some lesser unspecified amount. Mr Cukeric was also told that if a release was not given he would not be treated as having been retrenched for superannuation purposes. On the evidence, we are satisfied that that advice was intended to convey to Mr Cukeric that he would receive a superannuation benefit of some hundreds of thousands of dollars (to the order of $300,000) less than he had been told he would receive on termination if he accepted the Company's 'offer' and its conditions. This was reinforced in Mr Tideman's letter sent in response to Mr Cukeric's request for reconsideration of his personal circumstances, a reconsideration initially invited by the Company but then rejected by it in terms of any more favourable outcome for Mr Cukeric.
We accept Mr Cukeric had good reason to feel pressured and intimidated by the Company's treatment of him. The evidence was that he perceived the Company's conditional 'offers' to amount to threats, a perception which we think was clearly open in the circumstances. Indeed, Mr Budge's evidence made it clear that the threats were intended as a lever to persuade Mr Cukeric to accept the Company's proposal.
His Honour was critical of Mr Cukeric in having executed the release because he had had the opportunity to consider its terms and to seek legal advice. Nevertheless, his Honour concluded that the Company's representation of Mr Cukeric's entitlements to superannuation if he did not give the release was incorrect; the misrepresentation was such that, in his view, the Company should not derive any benefit from the release. Notwithstanding that the Company has challenged this approach we are of the opinion, on a careful review of the record, that the question of misrepresentation did in fact arise out of the Company's defence to the claim, namely, its reliance upon the bar contained in the release, rather than out of any specific claim by Mr Cukeric.
In those circumstances, should Mr Cukeric have been held to his release? We accept, as we indicated earlier, the Company's submission as to the importance in the public interest for parties to honour their agreements, and to be seen to do so, particularly those made in settlement of litigation. There is also, however, a public interest in parties honouring the obligations which they have under contracts including employment contracts and any promises and/or representations made in relation to such contracts. In this regard, the Company was remarkably deficient to the point, in our view, of engaging in conduct which was both reprehensible and unconscionable. It was conduct which makes irresistible the conclusion that the release it extracted from Mr Cukeric was harsh, unfair and unconscionable and contrary to the public interest within the scope of s 275. While we do not condone the action of Mr Cukeric in giving the release, the wrong there involved is submerged by the unconscionable conduct of the Company in misrepresenting Mr Cukeric's superannuation entitlements and demanding the release as a condition of paying him his correct and lawful ones. We are satisfied it would be unjust in the circumstances for Mr Cukeric to be held to the release.
39 In Cukeric, however, the Full Bench regarded the appellant's conduct as reprehensible and unconscionable and an attempt by the company to intimidate the respondent into signing the deed of release under the threat of not paying him some $300,000. We do not consider the respondent's conduct here was of the same character and such that Ms Small's will was overborne by threats or intimidation.
Whether terms of Deed rendered it unfair
40 The terms of the Deed are, however, a different matter. The Deed required the appellant to repay to the respondent an amount she was not obliged to repay, from monies to which she was lawfully entitled in the first place. That the respondent held a bona fide belief that FBT was the responsibility of the appellant does not render the Deed fair. It would be perpetuating a fundamental unfairness to allow an employer to retain monies lawfully owed to an employee.
41 It was contended for the respondent on the appeal that it was not put to Staff J at first instance that the Deed was unfair because it wrongfully required the appellant to repay monies and that the Deed should, therefore, be varied to overcome that unfairness. Consequently, it was contended, the appellant should not be permitted to run a different case on appeal.
42 However, there is no doubt that the FBT issue was squarely before his Honour and that his Honour was alive to the appellant's contention that she was not liable for the FBT on the novated lease of the car. Staff J appears to have accepted the evidence of Ms Gibson that the FBT amount was not the respondent's responsibility or, more specifically, the evidence that "FBT is not payable on a car allowance". We note, though, that Ms Gibson in her evidence conceded that she had no responsibility for FBT and provided no material in support of the contention that payment of FBT was not the respondent's responsibility. We consider his Honour erred in relying on the evidence of Ms Gibson. If his Honour had not relied on that evidence and had come to the view that the respondent was responsible for payment of the FBT, and not the appellant, the focus would inevitably have turned to the terms of the Deed. As it was, his Honour did not reach that point and, therefore, was not required to consider any variation to the Deed and consequential money orders.
43 As to his Honour's reliance on Green v Brown for not exercising his discretion to vary or avoid the Deed that was a case dealing with quite different circumstances to those that apply here. Green v Brown was an appeal from a decision and orders of Schmidt J and the paragraph relied on by Staff J appeared in the following context (at [95]-[99]):
[H]er Honour found that if it had not been for the conduct of the appellants in the first place the proceedings in the Supreme Court would not have been necessary and the respondents would not have incurred the legal costs they did. Therefore, in remedying the unfairness it was necessary to vary the partnership agreement from its commencement and to restore the respondents, as close as practicable, to a position that they would have been in had it not been for the appellants' conduct. In doing so it was appropriate to make money orders relieving them of the burden of legal costs that they would not otherwise have incurred but for the conduct of the appellants.
96 The appellants have not cited any jurisdictional bar to the Commission making orders B3 to B5 and we do not consider there are any such barriers (We should be taken, however, as accepting the form of the orders made as either available or appropriate). The question, therefore, is whether Schmidt J failed properly to exercise the discretion committed to her in respect to the legal costs issue: House v The King (1936) 55 CLR 499 at 504-505; Mace v Murray (1955) 92 CLR 370 at 378.