Apprentices overtime claim dismissed as frivolous or vexatious post Deed

Apprentices overtime claim dismissed as frivolous or vexatious post Deed

The Fair Work Commission has rejected an application for unpaid overtime from a former employee, ruling that the employee was bound by a deed of settlement agreed upon and signed by both parties, thereby making the application frivolous or vexatious.

The employee ‘DM’ commenced employment with Luban Homes Pty Ltd (Luban) as an apprentice carpenter on 16 November 2020. Luban is a construction company based on the Gold Coast primarily involved in designing and constructing houses.

The apprentices’ termination occurred after DM had been provided with several warning letters from 26 September 2022 to 11 October 2022 due to two different events where he did not attend work.

His first absence occurred from 26 September 2022 to 7 October 2022, which he attributed to requiring treatment from a Chiropractor for a spine muscle. However, he failed to notify his employer of his absence due to his supervisor being absent on annual leave. He did not attempt to notify anyone else in the company.

The second portion of his absence from work was from 11 October 2022 until his termination on 7 December 2022. He did not attend work during this period as he did not have access to a motor vehicle.

A meeting was held between the parties around 7 December 2022 to discuss the termination and a claim from the apprentice that he was owed $20,000 for unpaid entitlements of overtime and annual leave. The apprentice claimed that he routinely worked a 50-hour week but was only paid for his standard 38-hour week.

After initially offering $10,500 to settle the overtime dispute, the apprentice and his employer agreed to settle for a sum of $15,080.50 comprising $10,500 to settle the overtime dispute and $4,580.50 being paid out as a final payment based on accrued hours and leave.

The parties signed a ‘Terms of Settlement’ document to reflect their mutual agreement. However, in evidence before Commissioner Chris Simpson, DM claimed that he never read the document.

Luban claimed that DM should be barred from making an Unfair Dismissal Claim as he had signed, with full understanding and knowledge, a settlement agreement that released the respondent from any liability past, present or future from all claims, suits, demands, actions or proceedings, including the cessation of his employment.

Commissioner Simpson determined that DM had agreed to the terms of the settlement without any coercion or pressure being applied by his employer. He noted that the apprentice stayed with Luban management for several hours after the agreement was signed and witnessed and enjoyed drinks and then had dinner together.

As the Commissioner noted,

“I am not satisfied that he did not read the Terms of Settlement, or that he entered the agreement under duress, or was coerced into signing the Deed of Settlement”. Consequently, “I am satisfied that the Applicant is bound by the Agreement made”.

The Commissioner dismissed the application on the basis that it was frivolous or vexatious and had no reasonable prospects of success.

DM v Luban Homes Pty Ltd (U2022/12336) 8 March 2023

For queries about entitlements, settlement agreements, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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