Mrs Sonja Gasser v HSE Mining Pty Ltd

[2021] FWC 1655

[2021] FWC 1655

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Sonja Gasser
v
HSE Mining Pty Ltd
(U2019/5805)

DEPUTY PRESIDENT ASBURY BRISBANE, 25 MARCH 2021

Application for an unfair dismissal remedy – Application dismissed.

Background

[1] During a hearing I conducted on 23 June 2020, Ms Sonja Gasser reached a binding settlement agreement with HSE Mining Pty Ltd in relation to an unfair dismissal application made by Ms Gasser. Ms Gasser later sought to withdraw from the binding settlement agreement. HSE Mining Pty Ltd applied under s.399A of the Fair Work Act 2009 (the FW Act) for the Commission to dismiss an application by Ms Sonja Gasser for an unfair dismissal remedy on the grounds that Ms Gasser unreasonably failed to discontinue her application for an unfair dismissal remedy after a binding settlement was reached.

[2] On 1 March 2021, I issued an interim Decision 1 in which I explained my reasons for concluding that Ms Gasser had reached a binding settlement agreement with HSE and that the agreement extinguished Ms Gasser’s unfair dismissal application. I also explained that the Fair Work Commission does not have power to set aside such an agreement and that if Ms Gasser wished to contend that the settlement agreement was entered into under duress or mistake then she must make an application to a court to have it set aside. Further, I explained that the settlement agreement required Ms Gasser to sign a document setting out the agreed terms which are binding notwithstanding Ms Gasser’s refusal to sign the document.

[3] Finally, I explained that I intended to give Ms Gasser a 21 day period in which to seek legal advice about her position. In doing so, I asked Ms Gasser to note:

•  I was giving her the opportunity to seek legal advice to try to prevent her from causing further costs to the Respondent by pursuing a claim which could not succeed rather than encouraging her to seek an order from court setting aside the settlement agreement;

•  If Ms Gasser wishes to complain to the Police about any matter including matters related to her former employment with HSE, the terms of settlement do not prevent her doing so.

•  The terms of settlement are not binding in any way on Ms Gasser’s sons.

•  Ms Gasser is not entitled to reject the settlement agreement by refusing to sign the terms of settlement, while still claiming an entitlement to be paid the settlement sum provided for in the agreement.

•  Ms Gasser’s failure to sign the agreed terms of settlement document is a breach of the terms she agreed to on 23 June 2020.

[4] The Interim Decision contained the following statement:

“[55] If Ms Gasser persists with her current position, she is required to establish to my satisfaction by 4.00 pm on Monday 22 March 2021 that she has made an application to a court seeking to set aside the terms of settlement. If Ms Gasser does not satisfy me that she has made such an application, I will dismiss her unfair dismissal application without further notice to her.”

[5] Ms Gasser has not communicated with my Chambers since the Interim Decision was issued on 1 March 2021 and has not satisfied me that she has made an application to a court to set aside the settlement agreement. Accordingly, I have decided to dismiss Ms Gasser’s unfair dismissal application under s.399A of the Act and an Order to that effect is issued with this Decision.

DEPUTY PRESIDENT

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 1   [2021] FWC 348.