Damian Moodley v Yara Pilbara Fertilisers Pty Ltd

[2025] FWC 697

[2025] FWC 697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Damian Moodley
v

Yara Pilbara Fertilisers Pty Ltd

(U2024/12686)

DEPUTY PRESIDENT O'KEEFFE PERTH, 10 MARCH 2025

Applicant agreed to settle – failed to sign settlement paperwork – failed to respond to correspondence from the FWC - application dismissed pursuant to s.587 of the Act.

1. On 24 October 2024 Mr Damien Moodley (the Applicant) applied to the Commission under s.394 of the Fair Work Act (the Act) alleging he had been unfairly dismissed by Yara Pilbara Fertilisers Pty Ltd (the Respondent). The matter was allocated to my Chambers on 12 December 2024.

1. I conducted a conciliation conference between the parties on 24 December 2024 but was unable to resolve the matter on that date.  However, the Respondent advised Chambers on 2 January 2025 of a settlement offer which was then conveyed to the Applicant.  The Applicant was requested to advise Chambers if he accepted the proposal by 4.00pm (AWST) on 8 January 2025.  No response was received by that time and so a follow-up email was sent to him on 9 January 2025 requesting a response.

1. Such response was received on 10 January 2025 and the Applicant indicated he was seeking an additional non-monetary item from the Respondent.  Later that day the Respondent advised that it was not able to provide this additional item.  As such, I caused my Chambers to write to the Applicant on 10 January 2025 to ask if would accept the offer made on 2 January 2025.  The Applicant did not respond.  Given this, a further email was sent on 14 January 2025 and the Applicant responded the following day advising that he accepted the offer.

1. On 21 January 2025 my Chambers sent the parties a settlement deed that we had prepared for the parties.  On 22 January the Respondent sent a signed copy of the deed to the Applicant and to Chambers.  Nothing was received from the Applicant.  On 7 February 2025 the Respondent wrote to Chambers to ask if we had received a copy of the deed from the Applicant, and seeking the Applicant’s address so that it could send him the certificate of attainment which formed part of the settlement offer.

1. On 13 February 2025 I caused my Chambers to write to the Applicant requesting that he confirm his intentions with respect to settlement.  On 14 February 2025 the Applicant confirmed that he had received the settlement documents and would review them and respond.  No response was received by 19 February 2025 and so again my Chambers wrote to the Applicant requesting an update.  No response was received.  A further email was sent to the Applicant on 21 February 2025, again requesting an update.

1. On 24 February 2025 the Applicant responded and requested a new copy of the settlement documents as he claimed he could not locate those originally sent.  Such a copy was provided by my Chambers later that day.  No response was received from the Applicant.  On 27 February 2025 the Respondent requested that the Commission close its file as the Applicant had repeatedly failed to respond in a timely manner and had not signed the settlement deed.

1. I resolved to allow the Applicant some further time to provide a signed copy of the settlement deed.  However, as at 1.00pm (AWST) on 6 March 2025 no correspondence had been received from him.

1. Previous decisions of the FWC have found that the items in s587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521. In this instance, the Applicant has been a very tardy correspondent who has caused the FWC to expend significant resources in attempting to elicit answers from him.  He has also failed to respond to the most recent correspondence from the FWC advising him that he needed to sign the settlement deed – being a document he had been in possession of for some six weeks. 

1. The Applicant has entered into a settlement arrangement with the Respondent.  Such arrangement has been found to extinguish the unfair dismissal claim by virtue of the establishment of a new right under the terms of settlement.  In support of this I note the findings of the FWC in cases such as Duku v Ore Investments Pty Ltd.  In that case, Deputy President Beaumont observed as follows:

“I am persuaded that settlement was reached at the conciliation conference on 21 September and that the Terms of Settlement was of the first or second type discussed in Masters v Cameron. I consider that the unfair dismissal application should be dismissed pursuant to s 587(1)(c) of the Act on the basis that it had no reasonable prospects of success. This is because the binding settlement extinguished the Applicant’s existing cause of action (the unfair dismissal application) and replaced it with a new cause of action based on the agreement.”[1]

1. In these circumstances, I am satisfied that the Applicant’s unfair dismissal claim rights have been replaced with his rights under the agreed settlement.  If he chooses not to pursue those rights it is up to him, but the FWC should take no further part in this matter.  As such I am persuaded to exercise my powers under s587 to dismiss the application.  An order to that effect will issue.

DEPUTY PRESIDENT

[1] Duku v Ore Investments Pty Ltd[2020] FWC 5316 at [20]

Printed by authority of the Commonwealth Government Printer

<PR785089>