Applicant Seeks Injunction Against Respondents

Sorrenti v Lenovo (Aust & NZ) Pty Ltd (No 2) [2022] FedCFamC2G 485 (21 June 2022)

The applicant alleged bullying and harassment by members of staff of the respondent. The applicant sought an interlocutory injunction that the respondent (its servants and agents, including Lander and Rogers solicitors) will not engage in any acts of a threatening nature, harassment, force, intimidation, and the like, directed at the applicant. The Court, in adjudicating this dispute, assessed the effect of the Category 2 agreement. 

Facts:

On 16 December, Ms. Sorrenti (“the applicant”) made an Application to the Court under the Fair Work Act 2009 (Cth) (“the Act”), alleging a contravention of general protection. The applicant alleged bullying and harassment by members of staff of Lenovo (Aust & Nz) Pty Ltd (“the respondent”).

The applicant alleges that on 15 December 2020, she lodged a complaint about bullying and harassment with the respondent’s Human Resources Department. The applicant contends that the complaint was investigated and found the applicant was ‘partly bullied”.

The applicant alleges that as a result of the complaint the respondent took adverse action against the applicant by (a) delegating the investigation to the respondent’s “World Wide Ethics and Compliance Team” who undertook the investigation from India and (b) failed to conduct the investigation under and according to Australian law. 

It is further alleged that the respondent took further adverse action against the applicant in the form of directing the applicant to undertake fresh duties, which the respondent knew the applicant was incapable of properly performing. The applicant alleges that further adverse action was taken against her on 21 July 2021 following the finding that she had been “partially bullied” in that the respondent’s Chief Operations Officer directed that the applicant’s complaint should be resolved in mediation, and if not then there would need to be a separation. The applicant understood this to mean dismissal.

The applicant then took her grievance to the Fair Work Commission. A conciliation conference was held on 19 August 2021. There is a disagreement between the parties as to whether a final settlement was reached at that conciliation conference. The applicant subsequently refused to sign a Deed of Settlement prepared by the respondent’s solicitors.

In an additional application filed on the same date, the applicant sought an interlocutory injunction that the respondent (its servants and agents, including Lander and Rogers solicitors) will not engage in any acts of a threatening nature, harassment, force, intimidation, and the like, directed at the applicant. Another collateral but an acrimonious dispute arose in respect of a claim by the respondents that they were entitled to the return of a computer, that belonged to them, that was in possession of the applicant. 

On 26 October 21, the applicant’s then representatives sent an email to Commissioner Ryan’s Chambers requesting a second conciliation conference on the basis that the applicant believed that the deed did not accurately reflect the recording of the settlement that had been reached at the conciliation conference of 19 August 2021 in terms of clawback provisions regarding the settlement payment.

The respondent sought an order that the proceedings should be summarily dismissed under s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) and/or r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”) on the basis that, a binding settlement had been reached between the parties at a conciliation conference held before Commissioner Ryan on 19 August 2021.  

Issue:

Whether or not the application should be granted.

Applicable law:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143 - provides that he Federal Circuit Court of Australia (Division 2) may give judgement for one party against another in relation to the whole or any part of the proceeding if:

(a) the first party is defending the proceeding or a part of the proceeding: and

(b) the Court is satisfied that the other party has no reasonable prospects of successfully prosecuting the proceeding or that part of the proceeding.

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13 - provides that the Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in a proceeding. 

Masters v Cameron [1954] HCA 72 - provides that where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of the negotiation shall be dealt with by a formal contract, the case may belong to any of three cases.  

Morris v Baron and Company (1918) AC 1 - where there is no doubt that the general principle is that an accord without satisfaction has no legal effect, and that the original cause of action is not discharged as long as the satisfaction agreed-upon remains executed.

Sorrenti v Lenovo (Aust and NZ) Pty Ltd [2022] FedCFamC2G 256 - where it was necessary for an interlocutory hearing to take place, with the Court making orders for the return of the computer subject to certain conditions regarding the identification and provision to the applicant of certain personal documents and files stored on the computer. 

Analysis:

The effect of that Category 2 agreement was that the parties reached a complete agreement as to the terms of the settlement, with the payment agreed-upon to be subject to the execution of a Deed of Release to be prepared by the respondent’s solicitors.  Ms. Sorrenti has refused to sign the Deed of Release. 

Should she do so, then the respondents would be bound to make the payment that was agreed to her.  Ms. Sorrenti sought to agitate in this Court, the same matters that were the subject of the conciliation conference.

The agreement that was reached at the conciliation conference is binding upon the parties and accordingly, those matters cannot be re-agitated in this Court. It is not the respondent that has sought to repudiate the agreement. The respondent has at all times been willing to be bound by the agreement, subject to Ms. Sorrenti signing the deed of release as she agreed to in the conciliation conference.  

Conclusion:

The Court is satisfied pursuant to s 143(2)(b) of the FCFCOA Act that the applicant, Ms. Sorrenti, has no reasonable prospect of successfully prosecuting the proceeding and that the matter should be disposed of by summary dismissal pursuant to r 13.13(a) of the Rules. The application is dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

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