On 3 June 2003, I gave the following reasons, now slightly revised and edited, for dismissing Mr Thomas' application for relief under s.170CE of the Workplace Relations Act 1996.

[1] On 20 February 2003, the applicant, Mr Paul Thomas, lodged an application for relief under s.170CE(1)(a) of the Workplace Relations Act 1996 concerning the termination of his employment by Logica Australia Pty Ltd.

[2] Mr N. Henderson of the Australian Municipal, Administrative, Clerical and Services Union, appeared on behalf of the applicant, and Mr R. Bunting, solicitor, appeared, by leave, for Logica.

[3] Mr Thomas' employment was terminated by Logica on 17 January 2003. There is no dispute that as a result of a major merger between that company and another the positions of some 33 employees were made redundant. Mr Thomas claims that the procedure whereby he was selected was defective and deficient, thus rendering his termination of employment harsh, unjust or unreasonable.

[4] A preliminary issue to be determined is whether Mr Thomas is precluded from maintaining this action because he executed a deed of release at the time of the termination of his employment on 17 January. He was informed that he would be made redundant on 13 January and at the time of that meeting he was handed a release which he was asked to sign. The release ran to several pages but, relevantly to this decision, it provided in its recitals by way of background under clause (b) that:

As a result of the creation of Logica CMG PLC from the Logica and CMG organisations, Employee's position has become redundant.

Mr Thomas was defined as "Employee" on the face sheet.

[5] In the operative provisions the relevant clauses are set out below:

Without admission of any liability and in full and final settlement of any claim on exchange of this deed, LOGICA will pay to Employee the amount in Schedule A ("Payment").

Employee acknowledges that the payment is in full and final satisfaction and discharge of all claims and entitlements which Employee has, or may have had, or would have had arising out of the employment or the termination.

For the purposes of this Deed, Claims and Entitlements means any claim or entitlement, whether pursuant to statute, industrial award or enterprise agreement, contract or otherwise, and includes...

and it goes on to say what sort of payments are included, one of those being redundancy payment.

Employee hereby releases LOGICA from and indemnifies LOGICA against all liability relating to or arising out of the Employment or the Termination (other than those liabilities arising under this Deed) and the Accident Compensation Act 1985 (VIC).

Furthermore Employee hereby remits, releases and forever quits all Proceedings, including claims under the:

(a) unlawful or unfair dismissal provisions of the Workplace Relations Act 1996 (Cth); and/or

(b) unfair contracts provisions of the Industrial Relations Act 1996 (NSW).

These appear to me to be the relevant parts of the release for the purposes of these reasons. There is appended a schedule A that sets out the entitlements to which Mr Thomas became entitled on execution of the document.

[6] Mr Thomas claims that he executed the release under duress. In the words of Mr Henderson who appeared for Mr Thomas, at paragraphs 15 and 16 of the applicant's outline of submissions:

15. The applicant was placed in a position by the respondent where his choices were effectively to either eat or have his day in court. In our submission, this amounts to economic duress.

16. It would be unconscionable for the respondent to rely on this deed and having regard to the AIRC's obligations under section 110(2)(c), the AIRC will disregard the Deed of Release.

[7] Mr Thomas said that when he was told of his redundancy, Mr David Grima, the Victorian regional manager of the respondent's services division, told him that his position was redundant due to the merger; he could work out his notice but they would prefer him to go then. Mr Grima denied this and said that he told Mr Thomas that many employees preferred to go immediately. Mr Thomas said that Mr Grima told him what his entitlement under the deed would be and gave him a copy of the deed for his signature.

[8] There is no dispute that the applicant said that he wanted to consult his union before signing the deed, and that Mr Grima was happy that he adopt that course. There is a conflict about how long the applicant had to consider his position. Mr Thomas said that he had to sign the deed of release within three days, but Mr Grima said that he told the applicant no such thing. Mr Thomas in his oral evidence said:

And Mr Grima said, "By all means, take the deed to the union but you need to sign it within three days, otherwise you will miss out on the entitlements as stated."

I take that to mean the entitle ments, as set out in schedule A to the deed. In his statement, Mr Thomas said the following:

8. Mr Grimmer [sic] told me what entitlements I would be paid and I was given a document which they wanted me to sign. I told them I would not sign until I spoke to the Union. Mr Grimmer [sic] said that I could have three days but if I delayed beyond that there was every likelihood I would miss out on my entitlements.

9. I elected to leave employment on 17 January 2003 before the end of the notice period. I did this because my telephone and security passes were taken off me, and my email account was closed. There was nothing for me to do.

10. I sought advice from the ASU and was advised by Russell Atwood, the Secretary of the Victorian Authorities and Services branch, about the import of the Deed which I had been asked to sign by Logica. I was told that the Deed of Release was aimed at stopping me from contesting the basis on which I had been selected for dismissal.

11. Because it had been made clear to me that if I did not sign the deed I would not receive any money, and as I did not have the financial resources to go without compensation while the matter was argued, I felt I had no option but to sign it.

[9] However, during his oral evidence, Mr Thomas conceded that Mr Grima took him through schedule A and that Mr Grima said that there was a likelihood that Mr Thomas would miss out on some of the entitlements if he did not sign. I emphasise the word "some" because that seems to me to be significant. Mr Thomas also said that he knew that he had an entitlement to redundancy pay regardless of the deed.

[10] Mr Thomas said that he was aware of the staff handbook, which is attachment RR5 to the witness statement of Mr Rogers, the national staff manager. Clause 3.13 of that document states:

In the event that a position becomes redundant and there is no other suitable position for

the employee, the employee will, unless otherwise covered by an award, be entitled to the

2 weeks per year of service for the first 8 years.

1 week per year of service thereafter to a total limit of 30 weeks.

[11] Mr Thomas further said that he knew from his contract of employment that he had an entitlement to redundancy payments and other entitlements. He conceded that it was not correct to say that he would not get anything if he didn't sign the deed. I note that there was no suggestion in Mr Thomas' evidence, either in chief or in cross-examination, that if he didn't sign the deed, he would have to fight for his contractual entitlements or that those entitlements would not be paid within a timely fashion after his termination took effect.

[12] The applicant sought the advice of his union as to whether or not he should sign the deed. He was distressed at the time of his sacking, and he was under considerable financial pressure. He had mortgage and car lease commitments that he had to pay. Although it had not been quantified, the applicant knew that he would get something if he did not execute the deed. Neither he nor his union sought quantification of what amount Mr Thomas would receive were he not to sign the deed.

[13] Mr Grima conducted the termination interview, observed by Mr Bailey. They both gave evidence. Mr Grima contested telling the applicant that the company preferred him to work out his notice period. In my view, nothing turns on this in any event. Mr Grima also denied limiting the time to sign the deed to three days. Again, in my view, little or nothing turns on this as the applicant did not say at any time that he felt that three days was not enough.

[14] Mr Grima denies saying that if the applicant did not sign he would get nothing and indeed, the applicant's evidence does not go that far. I am prepared to accept that the applicant was told he might miss out on some of his entitlements as set out schedule A if he did not sign the deed, and that does indeed appear to be what would have happened. Mr Rogers also gave evidence and he provided a witness statement, as did all the witnesses. In his statement Mr Rogers said:

17. Employees were also asked to enter a Deed of Release with Logica Pty Ltd. All employees were encouraged to seek legal or union advice before signing the Deed of Release. Those employees who elected to work until 17 January 2003 were permitted and encouraged to seek such advice during that period.

18. Employees who chose not to sign the Deed of Release would receive payment for the week 13-17 January 2003 and their statutory entitlements, being payment for accrued annual and long service leave, one month's pay in lieu of notice, and severance pay...

[15] Employees from the ex-MITS business were entitled to severance pay according to the Logica/MITS staff handbook referenced in the ex-MITS employee's letter of appointment. I have already referred to the relevant extract of that handbook. I might add that Mr Thomas' contract of employment is also in evidence.

[16] Mr Rogers then dealt with the position of employees who agreed to sign the release. In his witness statement, Mr Rogers said at paragraph 19:

19. Employees who agreed to sign the Deed of Release would receive payment for the week 13-17 January 2003, payment for accrued annual and long service leave, one month's pay in lieu of notice, outplacement services (upon request), and more generous severance pay than that provided in the Logica/MITs Staff Handbook.

[17] At paragraph 20 of Mr Roger's statement, he set out the table of the redundancy pay scale that was applied. At paragraph 21 he dealt with Mr Thomas' position saying:

21. For Mr Thomas, the Logica/MITS Staff Handbook redundancy pay scale would have produced 10 weeks severance pay. The pay scale applied to him produced 14 weeks severance pay. (There were other benefits over and above his legal entitlement extended to him which I specify below.)

[18] Mr Rogers went on to indicate that he is aware that Mr Thomas had sought advice from the ASU, signed the deed, and received a $21,774.30 gross redundancy package comprising 14 weeks severance pay, one month's pay in lieu of notice, outstanding salary and accrued annual leave entitlements.

[19] It can be ascertained, and Mr Bunting has informed me, that had Mr Thomas not signed the deed and received ten weeks pay, he would have been paid the amount of $7,635 compared with the $10,689 he received for 14 weeks. There is a difference of $3,054. Mr Thomas did not complain, either on 13 January or on 17 January, that he was being pressured to sign the deed or that he understood that if he did not sign it he would get nothing. He signed the deed after obtaining advice from his union, the Australian Services Union. Mr Atwood, the branch executive president, provided a statement and gave oral evidence at the hearing. In his statement he said:

3. Mr Thomas was distressed about being required to sign the deed of release before the respondent would agree to pay any termination payment. He told me he could not afford to be out of work for any length of time or to be without an income. (My emphasis)

4. I told Mr Thomas that there was a case for the company to answer in relation to their conduct and management of his and other terminations. I said the ASU would pursue the matter on his behalf but these things invariably take some time.

5. I advised Mr Thomas that if he signed the deed the respondent would attempt to rely on it to prevent him for pursuing any matters against them such as an unfair dismissal application. I also advised him that if he was in a position that he had to have access to the termination payment immediately, then he had no real option but to sign the deed.

[20] Paragraph 3, to which I have referred, seems to be at odds with what Mr Thomas said and is contrary to the company's evidence. There was no evidence brought by Mr Thomas that he was required to sign the release before he would get any termination pay. As I have said, it appears from the evidence that neither the applicant nor Mr Thomas sought to clarify what would be the position in respect of Mr Thomas' entitlements if he declined to sign the deed of release. Mr Atwood said that he was not sure of the redundancy entitlements of the respondent's employees.

[21] The respondent led evidence from a number of witnesses, but I think that I have referred sufficiently to the evidence called on behalf of the respondents in relation to these issues. The matter that I must determine is, was there duress so as to make it unconscionable for the respondent to rely on the deed of release to prevent the applicant pursuing his application for relief.

[22] The parties both accept that the deed may be relied upon as a bar to the applicant maintaining these proceedings. Accordingly, it is not necessary for me to determine on what basis the Commission may exercise that jurisdiction; whether it be by way of estoppel or otherwise. It is accepted by the parties that many claims such as this are compromised at various stages; some before proceedings are brought and some even at the death knell of proceedings in the Commission.

[23] I have been referred to a number of authorities in relation to how the Commission should approach the task of determining whether or not to rely on a deed of release such as this. The first case to which I was referred is that of Stork Electrical Proprietary Limited v Le Good which is a decision of the Full Bench of the Commission comprising the President, Senior Deputy President Watson and Commissioner Holmes. [1] That was an appeal against a decision of Commissioner Whelan where the Commissioner had found a termination of employment to have been harsh, unjust and unreasonable, and the question of estoppel arose, because the applicant had executed a deed of release. The Commissioner had found that the employer put the employee under pressure, and used its superior bargaining power in doing so. She found that the employee was under a special disadvantage in having her employment terminated on the eve of entry to hospital for major surgery. The Full Bench dealt with the deed of release at page 9 of the report, at paragraph 33, noting that:

The appellant submitted on the appeal that the deed of release was a complete answer to the respondent's case and that it constituted a bar to any proceedings pursuant to section 170CE.

[24] The Full Bench set out the relevant parts of the release which are not dissimilar to those of the release in question in these proceedings. At paragraph 34 the Full Bench noted that:

...The terms of the release include an application under section 170CE and that properly construed the release bound the respondent not to initiate such an application...

[25] The Bench then pointed out how the Commissioner characterised the appellant's submissions concerning the deed, and they quoted from the Commissioner's decision thus:

It was not argued that the execution of the deed estopped the applicant from bringing the proceedings before the Commission. Rather it was argued that as a matter of public policy the Commission should uphold lawful releases as they provide a mechanism which encourages parties to settle litigation.

[26] The Full Bench accepted that that was the way in which the matter was argued before the Commissioner. And although the employer on appeal sought to argue the issue of estoppel, the Commission was not prepared to allow it to change tack on appeal. The Full Bench concluded in paragraph 35 by saying:

...We make it clear, however, that we are not required to decide whether a properly executed deed of release can constitute a complete bar to a subsequent action for relief in respect of termination of employment under Div 3 of Pt VIA. That was not a matter in issue before the Commissioner and for the reasons given it is not a question we should entertain.

[27] However, in the next paragraph under the heading: Public Policy, the Full Bench said this:

We agree with the proposition inherent in the appellant's submission concerning the deed of release that the Commission should not permit a party to a section 170CE application to depart from a deed of release which has been knowingly and properly executed. We do not think that principle was seriously in issue before the Commissioner. The main question which arose was whether the respondent's signature was obtained by duress and her agreement thereby vitiated.

[28] At paragraph 37 the Full Bench continued:

In this case the applicant was aware of the significance of the deed and had obtained legal advice. However, she faced particular personal circumstances which affected her decision to sign the deed. The Commissioner found she was under a special disadvantage when she decided to execute the deed. [That being that her employment was terminated on the eve of her entering into hospital for major surgery]. That conclusion was reasonably open to her on the evidence. True it is that the respondent knew of the legal effect of the deed and had received recent legal advice, but against that she had recently been made redundant and was about to enter hospital for a serious operation after which her prospect of future employment was, to say the least, uncertain. The Commissioner concluded, having regard to these factors and having regard to her other findings, that the termination was harsh, unjust and unreasonable. By necessary implication, the Commissioner also found that the respondent's signature on the deed was obtained by duress. Whether or not we would have reached the same view is, of course, not to the point. The question on appeal is whether the Commissioner's conclusions were reasonably open to her. We are satisfied that they were.

[29] In this case it seems to me that there are no special circumstances of the kind referred to in Stork Electrical Proprietary Limited v Le Good relating to the applicant. The circumstance relied on by Mr Henderson is that the applicant had economic reasons requiring him to continue receiving money in order to meet his mortgage and car repayment obligations.

[30] I made some observations on the powers of the Commission in relation to questions of estoppel in T. Ersetic v G.B. Tooling Pty Ltd. [2] At paragraph 5 of that decision, I quoted from The Laws of Australia, [3] as follows:

Estoppel is a substantive principle of law which operates to preclude a party to legal proceedings from asserting against another party facts, legal rights or the absence of legal obligations, to the extent that it would be unconscionable to do so. The object of estoppel is to preclude the unconscientious departure by a party from an assumption for which he or she bears some responsibility, and which has been adopted by another party as the basis of a course of conduct, act or omission which would operate to that other party's detriment if the assumption were not adhered to.

[31] I referred to a decision of Deputy President Williams, as he then was, where his Honour doubted whether estoppel applied in certain matters before the Commission. His Honour doubted that a legal doctrine, such as equitable estoppel, was appropriate for proceedings before the Commission. At paragraph 8 I went on to say:

...He referred, however, to the requirement in section 110(2)(c) which enjoins the Commission to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms. It can be seen from the definition of the doctrine of estoppel to which I have referred that the considerations relevant to determining whether Mr. Ersetic is estopped from asserting that he was an employee will be similar to, if not the same as, those that pertain to the Commission acting according to the requirements of s.110(2)(C). Another consideration pertains in relation to applications for relief in respect of terminations of employment. Section 170CA(2) ensures that a "fair go all round" is accorded to both the employer and the employee concerned. Put another way, having regard to the requirements of s.110(2)(c) and s.170CA(2), should the Commission, according to equity, good conscience and the substantial merits of the case, as well as ensuring that the parties are given a fair go all round, allow Mr. Ersetic to assert that he was an employee at the time he ceased to work for the respondent?

[32] In the end I doubted that estoppel was available at the time that a party challenges the jurisdiction of the Commission. Similar comments, although in a different context, have been made by Vice President Lawler in Hogan v Employment National (Administration) Pty Ltd. [4] That matter involved a motion under section 170CE(a) to dismiss an application for want of jurisdiction on the basis that there was an abuse of process and that there was a res judicata. An order had been obtained by Mr Hogan under s.106 of the Industrial Relations Act (1996) (NSW), and it was argued against him that there was a res judicata preventing him from bringing an unfair dismissal proceeding. At paragraph 29 his Honour the Vice President said the following:

It is undesirable and unnecessary for me to attempt to resolve the broader outstanding issues of the application of principles of abuse of process and res judicata in this jurisdiction. For present purposes it is sufficient to observe that the considerations of public policy which inform the principle of abuse of process will almost invariably be just as relevant to proceedings under Part VIA of the Act as they are in proceedings before a court. Having regard to the broad procedural discretions conferred upon the Commission by s.110 of the Act and the nature of the powers conferred by s.111 of the Act, it will typically be appropriate for the Commission to give substantial weight to the principles of abuse of process and res judicata when considering the exercise of discretionary powers under s.110 and [111](../../wrasections/ss.111 of the Act or in relation to the exercise of other discretions conferred on the Commission. In particular, in my opinion, in appropriate cases substantial weight should be given to the principles of abuse of process and res judicata when considering the exercise of discretion to extend time pursuant to section 170CE(7).

[33] I intend to take the approach that I adopted in the Ersetic case rather than deciding whether strictly an estoppel arises or some other legal or quasi-legal bar exists. I intend to consider this matter, having regard to the requirements of section 110(2)(c) and s.170CA(2) and ask the question: should the Commission, acting according to equity, good conscience and the substantial merits of the case as well as ensuring that the parties are given a fair go all round, allow this application to proceed in face of the deed of release signed by the applicant? Further, s.90 requires that I have regard to the public interest. It is in the public interest that settlements compromising proceedings or potential proceedings be honoured, unless here is a sound reason, such as that the compromise was obtained by duress, not to observe their terms.

[34] Mr Henderson submits that I should disregard the deed of release, because it was obtained by duress and misrepresentation. The duress is said to be Mr Thomas' economic position and his belief that to access his entitlements he was obliged to sign the deed of release. Further, that because he only had three days, he was placed under unconscionable pressure. The misrepresentation is said to be the fact that Mr Thomas was informed, and the deed recites, that his "position" had become redundant.

[35] The leading case on duress is Crescendo Management Pty Ltd v Westpac Banking Corporation. [5] In the judgment of McHugh JA, as he then was, at page 46 appears an exposition of what constitutes duress, an exposition that has been consistently adopted and applied since his Honour's reasons were delivered. His Honour said:

...The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.

In their dissenting advice in Barton v Armstrong [1973] 2 NSWLR 59; [1976] AC 104, Lord Wilberforce and Lord Simon of Glazedale pointed out (at 634; 121):

"...in life, including the life of commerce and finance, many acts are done under pressure, sometimes overwhelming pressure, so that one can say that the actor had no choice but to act. Absence of choice in this sense does not negate consent in law: for this the pressure must be one of a kind which the law does not regard as illegitimate. Thus, out of the various means by which consent may be obtained - advice, persuasion, influence, inducement, representation, commercial pressure - the law has come to select some which it will not accept as a reason for voluntary action: fraud, abuse of relation of confidence, undue influence, duress or coercion."

[36] It can be seen that to constitute economic duress the pressure must be illegitimate. A more recent discussion of what constitutes unconscionable conduct may be found in ACCC v CG Berbatis Holdings Pty Ltd. [6] It is a judgment of Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ. It revolved around an extension of a lease, and I think that the facts appear sufficiently from this part of the headnote:

In October 1996 a purchaser signed an offer to purchase the Roberts business for $65,500 subject to a lease of the premises being assigned to his satisfaction. The owners of the centre required the inclusion in a proposed deed of assignment of a clause whereby the Roberts would discharge the owners from all claims arising from any act or omission by the owners prior to the proposed assignment date, and the Roberts would consent to the dismissal of any current legal proceedings against the owners. The Roberts decided that they had little option but to sign the deed, and they did so.

[37] The Chief Justice made some observations about unconscionable conduct at paragraph 11 and following as follows:

11. One thing is clear and is illustrated by the decision in Samton Holdings itself, a person is not in a position of relevant disadvantage, constitutional, situational or otherwise simply because of an inequality of bargaining power. Many, perhaps even most, contracts are made between parties of unequal bargaining power and good conscience does not require parties to contractual negotiations to forfeit their advantage or neglect their own interests.

12. In Amadeo_, Mason J said that the point of using a qualifying word "special" before disadvantage in this context is to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasise the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests. It was the inability of a party to judge his own or her own best interests that was said by McTiernan J in_ Blomley v Ryan_, and again by Deane J in_ Amadeo to be the essence of the relevant weakness.

13. The adjective "special" was also used by Kitto J in Blomley v Ryan when he referred to the well-known head of equity invoked in that case. He said, "It applies whenever one party to a transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affect his ability to conserve his own interests and the other party unconscientiously takes advantage of the opportunity thus placed in his hands."

14. Unconscientious exploitation of another's inability or diminished ability to conserve his or her own interests is not to be confused with taking advantage of a superior bargaining position. There may be cases where both elements are involved, but in such cases it is the first not the second element that is of legal consequence. It is neither purpose nor the effect of section 51AA of the Trade Practices Act to treat people generally when they deal with others in a stronger position as though they were all expectant heirs in the 19th century dealing with a usurer.

[38] Gummow and Hayne JJ at page 167 also discussed unconscionable conduct. I note that their Honours had cited Crescendo at paragraph 45 of the judgment. At 55 their Honours said:

In Commercial Bank of Australia v Amadeo_, Mason J referred to passages in the judgments of Fullagar and Kitto JJ in_ Blumley v Ryan_. Mason J said: It is made plain enough, especially by Fullagar J, that the situations mentioned are no more than particular exemplifications of an underlying general principle which may be invoked whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created. I qualify the word "disadvantage" by the adjective special in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasise that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests when the other party knows or ought to know the existence of that condition or circumstance and of its effect on the innocent party._

His Honour went on to emphasise the need for the plaintiff seeking relief to establish the taking of unconscientious advantage of a plaintiff's disabling condition or circumstance. It will be apparent that the special disadvantage of which Mason J spoke in this passage was one seriously affecting the ability of the innocent party to make a judgment as to that party's own best interests.

[39] On the question of duress Mr Bunting also referred me to the case of Tunbridge v Linde Material Handling Pty Limited. [7] That case is in some respects strikingly similar to this case. It was a matter in relation to unlawful termination under the predecessor to the Workplace Relations Act, the Industrial Relations Act 1988, and it also involved a deed of release, and the effect of that when considering unfair dismissal proceedings under that Act.

[40] Mr Bunting took me to page 116 where there is set out the factors that were alleged to constitute the duress that was applied to the applicant:

He was not well and had been to the doctor that day. All staff immediately under him had been dismissed. He had a young wife and two children under the age of three to consider. He owed money on his home. He was almost 54. He considered that his prospects of employment were grim. He had been told that he would be dismissed or he could resign and sign a letter of resignation and the deed. This was in the context, he said, of him having seen other people dismissed from the company and them having left immediately.

[41] There was a deed of release relied on in that case, as there was in this case and the effect of the deed of release in Tunbridge's case seemed to be that Tunbridge would have been paid an additional two months pay over and above his strict legal entitlements had he signed the deed of release. The Judicial Registrar dealt with the concept of duress at page 117 saying:

A contract is voidable at common law if made under duress. The concept of duress has evolved over the years and is still apparently evolving. The most recent cases illustrate that it is not necessary that the will of the victim be overborne. The basis for relief on the ground of economic duress is that the pressure exerted on the victim is such that he had no reasonable or practicable alternative but to submit to the demand made. The pressure applied must in the circumstances be unconscionable.

At page 119 the Judicial Registrar found that the applicant considered the approach of the company to be intimidatory and went on to say, as I said:

An employee whose employment has been unlawfully terminated can still compromise his or her rights to proceed. That compromise can be entered into during the same meeting as that at which the dismissal occurs. On analysis, in my opinion the conduct of Mr Raj and of Mr Lorking at the meeting on 18 July 1996 was not such that the pressure they exerted on the applicant to sign the deed was unconscionable. No doubt the applicant did feel under pressure to sign. However, in my opinion a lot of that pressure was not on him as a result of what Mr Raj or Mr Lorking had said or done, rather it was the product of his personal circumstances. It cannot, therefore, be said that the pressure on the applicant was substantially of the making of the respondent.

That it did not necessarily follow that the applicant had no practical alternative but to sign the deed of release. He did have a practical or reasonable alternative of which he was aware. This was to refuse to sign it and to thereby maintain his rights to take legal action. But in order to achieve the better financial result the applicant chose to sign the deed of release and to accept an extra month's salary in return. It may not have been a good deal for him, but a deal it was. The applicant's signature on the deed of release was not obtained by duress. The deed, therefore, binds him and he has compromised his right to take these proceedings. The order that the court makes is that the application will be dismissed.

[42] In applying the principles gleaned from the cases to which I have referred, I can discern no unconscionable conduct by the respondent in this matter. Accordingly, no duress has been applied. Any financial pressure under which the applicant was placed was of his own making. It was not a result of anything done by the company. In any event, Mr Thomas knew, or should have known, that he would get much of what was offered under the deed even if he didn't sign it and, on the evidence, it would appear that he would have got all but $3,054 of what he received under the deed.

[43] There is no evidence that the three-day period, even if the applicant was given only three days to make a decision, was too short, or that it put him under undue pressure. There is no basis for any assertion that Mr Thomas would miss out on his statutory entitlements or have to fight for them if he hadn't signed the deed of release. Mr Thomas had an opportunity to seek union advice and he got union advice and that advice was to the effect that if he signed the deed of release the company would seek to prevent him bringing unfair dismissal proceedings.

[44] Mr Thomas knew what was the result of signing the deed, as was the case in Tunbridge. Mr Thomas signed the deed to achieve the better financial result that was to be obtained by signing it. He got his extra four weeks severance pay. The signature on the deed of release was not obtained by duress.

[45] Mr Henderson finally contended that the deed was signed under a misrepresentation as to the nature of the redundancy. He makes the valid point that Mr Thomas was told that his position was redundant, when the true position was that as a result of the merger there were fewer desktop support technician positions available in the merged organisation than there had been in the two merging organisations. There appear, as I understand the evidence, to have been two fewer such positions. However, I do not think that the possible misdescription of the provision in the deed of release constitutes a misrepresentation.

[46] Mr Thomas knew that there had been a merger and it is likely that he knew not all desktop support technician positions had been made redundant. In my view there is force in Mr Bunting's submission that the position of a desktop support technician had become redundant. It was a misdescription to say that Mr Thomas' position had become redundant, but in my view that misdescription did not constitute a misrepresentation such as to justify me in releasing Mr Thomas from the force of the deed.

[47] The basis for Mr Thomas' retrenchment was the abolition of two such positions and his not being retained for any of the remaining positions. I accept that if the matter were to proceed to a hearing on the merits, questions about how Mr Thomas was selected for redundancy would arise. However, as I have indicated, I do not accept that the respondent or the deed misrepresented the basis for the termination of Mr Thomas' employment. The applicant's termination of employment was because he was redundant, there having been fewer desktop support technician positions available after the merger than there had been before it.

[48] Accordingly, it is not appropriate that the provisions of the deed should be departed from, and accordingly the applicant's application for relief is dismissed.

R. Bunting on behalf of Logica Australia Pty Ltd.

Printed by authority of the Commonwealth Government Printer

1 (1990) 95 IR 1

5 (1988) 19 NSWLR 40

6 [2003] HCA 18; (2003) 197 ALR 153