8 April 2019
Employer able to recover stolen funds from employee despite settlement agreement
In a recent decision1, the Queensland Court of Appeal upheld a decision that a deed of release, drafted in general terms to release the employee from all claims arising from her employment, did not extend to conduct the employer was unaware of at the time of execution.
The employer, Dormway, terminated the employment of its office manager, Wichmann, after discovering she had misappropriated $2,809 of company money by diverting it to her own bank account. Although she stated that this was an inadvertent diversion and offered to repay the amount, Dormway had lost trust in her and terminated her employment. The parties entered into a deed of release containing terms of her departure whereby Dormway would pay Wichmann a redundancy payment of $42,669, less the misappropriated sum.
The deed contained mutual releases and the terms were drafted generally to discharge Wichmann from ‘all causes of action, actions, suits, arbitrations, claims, demands, costs, debts, damages, expenses and legal proceedings’ arising from, or in connection with, her employment or its termination.
Subsequently, Dormway discovered that Wichmann had misappropriated much more than the $2,809. In fact, it came to light that she had taken $320,000 of company money and Dormway commenced proceedings to recover the amount. Wichmann defended the proceedings on the basis that the release precluded the claim.
The judge at first instance found in favour of Dormway and ordered Wichmann to pay the amount of the claim, plus interest and costs. Wichmann appealed the decision.
Decision on appeal
Dismissing the appeal, the Court upheld the decision at first instance, finding that the release did not protect Wichmann from the misappropriation claim. Despite the release being drafted in all-encompassing general terms, Dormway was entitled to recover the additional money because it was unaware of the extent of Wichmann’s misappropriation when executing the release.
The Court noted that releases can be drafted to be effective against liabilities the parties are unaware of, but to do so there must be plain language to this effect included in the release.
The Court commented that Wichmann was also prevented from relying on the release because:
- it was ‘unconscientious’ – equity would prevent Wichmann from relying on the release when she knew that Dormway was unaware of the additional sum she had taken; and
- Wichmann had a duty of good faith to disclose the truth to Dormway in circumstances when her silence induced Dormway to execute the release. Her reliance on the release would, therefore, be ‘common law fraud’.
Lessons for employers
Key lessons for employers arising from this case include:
- When drafting releases, it is important to be aware that even if the terms of the release state that no further causes of action can arise between the parties, this will not always be the case.
- If the intention when drafting a release is to ensure a final resolution is reached and no further related disputes can arise, the parties should use clear language to indicate that any claims the releasing party is unaware of are being surrendered.
- Employers should think carefully prior to including mutual releases in settlement agreements involving employees, particularly where the employer’s trust in the employee has diminished.
1Wichmann v Dormway Pty Ltd  QCA 31
This article was written with the assistance of Maia Joseph, Law Graduate.
Jillian provides practical and commercially-minded advice to private and public sector employers on a wide range of labour and employment and privacy matters.More about Jillian
You might be also interested in...
Thinking | Fri 07 2019
The countdown is on: less than 12 months to go for large companies to prepare modern slavery statements
n Australia, it’s estimated that around 15,000 people may live in conditions of modern slavery, forced labour, wage exploitation, human trafficking or debt bondage.
Thinking | Thu 07 2019
Significant reputational damage is not the only issue companies should be aware of in cases of erroneously underpaying staff, as discovered by MAdE Establishment (MADE) after entering into a Court-Enforceable Undertaking (EU) with the Fair Work Ombudsman (FWO) last week.1 The beginning of the underpayment issues date back to 2015 when the FWO issued a […]