Welcome to Part 2 on how to get out of your Deed of Release. Today we will discuss the doctrines and legal principles that you can use to explain why you signed the Deed of Release, which a Court may then consider to be sufficient reasoning to have the Deed of Release set aside.

Legal consequences of signing a Deed of Release

If your lawyer negotiates a Deed of Release on your behalf, and manages favourable terms whereby both parties are happy with the resulting terms and conditions of the agreement, this is ordinarily a good result, as it indicates an amicable resolution of the matter. That said, a Deed of Release is binding in nature and should be understood from a legal point of view. In some Deeds of Release you will see terms to the effect that the employee is being required not to bring claims against the ex-employer apart from those relating to WorkCover. If, however, someone is rushing you into signing, you should be careful not to do so until you have taken the time to read the entire document and you understand its legal effect on you personally and what rights the employer is seeking to limit or preclude.

If you were pressured at the time and signed without reading the document, seek legal advice immediately to give yourself the best chance of being compensated by your ex-employer. To do this, you will need to have your lawyer apply to have the Courts set the Deed of Release aside. Your success in having the Deed of Release set aside will depend on the unique circumstances of your case. There are some legal principles, or ‘doctrines’, which you should ask your lawyer about, as these might be useful in building a case against an ex-employer who is seeking to enforce the Deed of Release against you. Here are some examples:

Duress 

This is one of the most common causes of action you might bring against an ex-employer when seeking to have a Deed of Release set aside. It can be physical duress, which involves someone actually making you physically sign or making physical/psychological threats against you (or someone you know) if you do not sign. Duress can also be economic, for example threatening to withhold certain entitlements, even if the employer never had any right to withhold these entitlements in the first place.

If you and your lawyer can show that you were feeling threatened and unsafe, or being placed under unnecessary commercial pressure, and that this is what caused you to sign the Deed of Release, there may be grounds to have the Deed of Release set aside.

Undue Influence

Another possible defence to signing a Deed of Release is undue influence. There can be some confusion surrounding this defence as, for all intents and purposes, the Deed of Release appears to have been entered into validly and willingly. Despite your initial feelings that both parties’ interests had been considered, you might argue that because of the nature of your relationship with your employer, that the bargaining positions were inherently imbalanced. While it is possible to prove this, generally the employer/employee relationship is not considered to be inherently imbalanced. However, if you can prove that there was a notable difference in the bargaining power of the two parties upon signing, the onus of proof will shift to the employer to prove otherwise.

Unconscionable Bargaining

Finally, you can argue that the Deed of Release should be set aside because the negotiation process was in some way abused. This is usually relied upon when you have not been able to argue duress or undue influence as a defence in having the Deed of Release set aside. If you did not understand the document you were being encouraged to sign and you had some special circumstances, such as a language barrier, lack of education, or mental disability, you may be able to prevent the employer from enforcing the Deed of Release against you.

Conclusion

The likelihood of success will depend on the circumstances of your case and how quickly you try to rectify the situation. Either way, it is prudent to seek legal advice from an employment lawyer as soon as practicable. To speak with one of LegalVision’s employment lawyers, contact 1300 544 755 and get a fixed-fee quote to have your matter reviewed.

Jill McKnight

Next Steps

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