Mr Patrick Arther Lyng v Bradnam's Windows and Doors Pty Ltd
[2024] FWC 908
•9 APRIL 2024
| [2024] FWC 908 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Patrick Arther Lyng
v
Bradnam's Windows and Doors Pty Ltd
(U2024/214)
| COMMISSIONER DURHAM | BRISBANE, 9 APRIL 2024 |
Application for an unfair dismissal remedy – application dismissed under s.587
On 5 January 2024, Mr Patrick Arther Lyng (Mr Lyng/the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Bradnam's Windows and Doors Pty Ltd (the Respondent).
I listed the matter for a case management conference/directions hearing by telephone on 14 March 2024.
On 14 March 2024, Mr Lyng participated in the conference for himself, while Ms D’Neale Prosser and Ms Kelly Gould appeared on behalf of the Respondent. During the conference a resolution was reached between the parties. My Chambers drafted a deed of settlement (the Deed) and provided this to the parties on 15 March 2024 for execution. I note that it was agreed that once the deed had been complied with, Mr Lyng would discontinue the matter.
On 20 March 2024, both parties provided signed copies of the Deed to my Chambers. On the same day, the Respondent provide a statement of service for Mr Lyng in compliance with the Deed.
On 21 March 2024, Ms Prosser sent the following email to Chambers:
“Good afternoon Commissioner,
Please be advised that the applicant is approaching the respondent’s payroll department directly chasing up his payment. Please if you can ask him to cease that interaction.
We can confirm the applicants [sic] full and agreed payment has been made.”
On the same day, Mr Lyng sent the following email to Chambers:
“The money I received was wrong I thought I was going too get 7 weeks pay I only got 4 weeks pay off $5,849.00 in my bank I should have recieved [sic] 7 weeks pay of $8,598.45 in the bank because I got $1600.00 with out [sic] tax and and [sic] with tax I brought home in my hand was $1260.00 a week.”
On 22 March 2024, my Associate sent the following email to the parties:
“Dear parties,
Reference is made to the above matter and previous email below from the Respondent.
The Applicant is asked to please refrain from approaching the Respondent’s payroll department.
With respect to the attached email from the Applicant.
It is noted per the attached deed of settlement that the Applicant was to be paid $8,598.45 which would be taxed in accordance with law, therefore the Applicant would not receive the full amount of $8,598.45.
As such, the Respondent is asked to please clarify the amount paid including how the tax was calculated for the benefit of the Applicant’s understanding.
The Applicant is reminded to ensure that they copy in the Respondent to emails sent to Chambers.”
On the same day, the Respondent replied with the following explanation to Mr Lyng:
“Thank you for your action and response.
To confirm the Applicant has been made the below :
Gross: $8598.45
ETP Tax: $2752.00
Net: $5846.45”
On 25 March 2024, after receiving no further correspondence from Mr Lyng, my Associate sent the following email to him:
“Dear Ms Lyng,
Reference is made to the above matter and the Respondent’s previous email below explaining the tax treatment of the settlement sum.
As it appears that the Respondent has complied with the deed of settlement, please confirm that you wish to discontinue the matter in accordance with clause 7 of the deed.”
On 26 March 2024, as no further response was received from Mr Lyng, my Associate sent the following email to him:
“Dear Mr Lyng,
Reference is made to the above matter and previous emails below.
Please provide a response by close of business today, 26 March 2024.”
On 2 April 2024, Mr Lyng replied with the following:
“I Patrick lyng didn't recieved [sic] my 7 weeks [sic] pay I only got 4 weeks [sic]pay they took my tax out off my net pay of 1260.00 that I take home they didn't give me the gross pay off 1600.00 and take tax out off that 8950.00 in my bank so it should have be 11.200.00 gross and then tax1 taken out off that that made it 8.960.00.in my bank not 5.860.00 in my bank and that's 4 weeks pay that is not what was the agreement I thought I was going too [sic] get it said 7 weeks.”
On the same day, Ms Prosser replied with the following:
“Good afternoon Chambers,
Please if you can explain to the applicant that his agreed payment was made as agreed upon and signed.
Please can you take the next steps to resolve this matter as a priority as we have not yet received notification from the applicant of the case being withdrawn as he signed and agreed. The respondent promptly made agreed payment and provided statement of service with in the required 7 days.”
On 4 April 2024, my Associate sent the following email to the parties:
“Dear parties,
Reference is made to the above matter and the attached email from the Respondent and below email from Mr Lyng.
Upon review of the recorded agreement, the Commissioner reminds the parties that the settlement sum to be paid to Mr Lyng was $8,598.45 (consisting of 7 weeks – at a rate of $1,228.35 per week) which would be taxed in accordance with law. As was explained by the Respondent in their email dated 22 March 2024 (attached), the settlement sum the Applicant should receive is $5,846.45. There was no agreement for $11,200.00, at a rate of $1600 per week, to be paid by the Respondent. As such, the deed as written captures the agreement of the parties (both signed copies attached).
Furthermore, Mr Lyng was asked during the conference if the above was correct, to which he confirmed that it was.
In compliance with deed of settlement, Mr Lyng is asked to advise of their discontinuance in compliance with the deed by close of business tomorrow, 5 April 2024. Alternatively, the Commissioner may dismiss the application given that the matter was resolved and compliance of the deed has been met, apart from Mr Lyng discontinuing the matter.”
On the same day, Mr Lyng responded to the above email with the following:
“I Patrick arther lying 05|01/1974 I'm going too a sicogest [sic] for what happen too me at bradnams windows and door I got staked by one of my work mates at bradnms and doors I got slapped I got throwern [sic] on too concrete I past [sic] out and woke up with Shane and Joe walking away from big dan with his both hand sittig [sic] on top off me and he was trying too [sic] kill me by strangling me and then I heard a pop he pop [sic] my voice box with his two thrums and then I past [sic] out again and all I can remember now is when he got of me I don't even know how long I past [sic] out for could have been about 5 minutes or 10minutes [sic] u [sic] can say because the first time I past [sic] out Shane and Joe was sitting with us why don't they help me and then any way after the second time I past [sic] out and then woke up like I said Shane and Joe got up off there [sic] seats and walked away from big dan why didn't they stop big dan from choking me even after he was squeezing the life out off means he pop my voice box and after I said kill me then he keeped [sic] on squeezing my thought till I past [sic] out again and then when he got off me I tried even too shake his hand and tried too [sic] ask him what going on bro he just slaps my hand away and then he texted too [sic] have a go ate [sic] me again but these time he texted too [sic] hit me with a chair it just missed me and then he picks up a piece off medal [sic] and hit me with that as well were was my juddy [sic] off care and why didn't the foreman that day ring up a [sic] ambulance and police were was my first aid person it's not fare [sic] because they couldn't fide [sic] anything wrong with my work so they fired me for a gel gun that was not working I had my lunch in the same bag as my gel gun 2weeks [sic] prirer [sic] too the the [sic] real reaine [sic] why I'm were too [sic] today writing this too [sic] u my commisioner [sic] that big dan and Joe and Shane and two blue hat Diemen's sore [sic] these gel gun 2weeks [sic] prirer [sic] too what happen too [sic] me and one off the blue hat foreman even said too me u [sic] should have not brought that here and he ask if I new [sic] that I said no he said put it back into my locker and don't ever bring it back so I didn't being [sic] it back and I didn't get sent too [sic] the office at all or any other worning [sic] about the gel gun and even when big dan sore [sic] and grad[sic] the gun and when I was taken the gun back too [sic] my locker dan sings out big my gloves ate [sic] the end off the year know by saying that he had something plain too [sic] knock me out anyway and privest [sic] too [sic] what happen too [sic] me he has attacked some body [sic] else and he still keeped [sic] his job now that Friday I got strangled Monday comes and Adam my boss ring me up and ask me too [sic] write out a statement and give it too [sic] him I did write one but even the police have records off me getting strangled from big dan but then Addams then sends a [sic] email stateing [sic] that both party's was not aloud [sic] too [sic] go back too [sic] work at all and then on that some[sic] day Tuesday they ask me too come in and bring a witness with me I didn't even have time too [sic] get my self [sic] a witness I got too [sic] work Adam took me to the office with the blue hat managers that took pictures off my ripped shirt and pictures off big Dan's hands around my throat so they took me into the office we sat down I gave my statement off [sic] what happen he read it and said too me he called u [sic] a [sic] alien and go back home were u [sic] come from that's what big dan said too [sic] me as I was walk [sic] out too [sic] have my lunch before he attacked me then after Adam read it he throws my statement in too [sic] the core [sic] and said too me were not hear about that we are here about the gel gun and makes me sign some papers and told me I was fired for the gel guns a mistake I did .2week [sic] preierer [sic] what happened too [sic] me and know [sic] I get brid [sic] to keep my mouth shut about all these and tell nobody what happened too [sic] me I don't think so I would have got what I asked for but I didn't I real [sic] did thought I was going too [sic] get 8960.00 in my bank if I new [sic] I was only got 5860.00 in my bank I would have not said yes I can't read that good all understand and I had no one with me when the commisioner [sic] spoke too as I'm sorry but that's wrong and I will be taken it further your commsioner [sic],”
To date, Mr Lyng has not complied with the Deed, noting it is not appropriate for the Commission to hold open matters that have settled, with the expectation that parties comply with their settlement obligations.
Section 587 of the Act provides as follows:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.[2]
Noting that section 587(1)(c) provides that the Commission may dismiss an application that has no reasonable prospects of success and that the Commission may do so on its own initiative under section 587(3), I am satisfied that the settlement between the parties in this matter was reached during the conference and was finalised by way of the fully executed deed of settlement. Mr Lyng in signing the deed, and the Respondent complying with said deed, he has released the Respondent from any liability connected to his employment. He had also agreed to discontinue his application once payment was received.
As the Commission may have regard to such a settlement in considering whether to dismiss an application under section 587 of the Act, in these circumstances, I am persuaded that I should exercise my discretion under section 587 of the Act and dismiss the Applicant’s application in light of the settlement agreement, as Mr Lyng has no reasonable prospects of success section pursuant to section 587(3)(a) of the Act.
An order to that effect will issue with this decision.
COMMISSIONER
[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].
[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].
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