INTERIM DECISION

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

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

DEPUTY PRESIDENT ASBURY

BRISBANE, 1 MARCH 2021

Application for an unfair dismissal remedy.

Overview

[1] During a hearing on 23 June 2020 into an unfair dismissal application made by Ms Sonja Gasser, I facilitated the making of a settlement agreement between Ms Gasser and the Respondent, HSE Mining Pty Ltd (HSE). I made an audio recording of the settlement agreement which has been provided to the parties. The settlement agreement, as recorded, was immediately binding on Ms Gasser and HSE and included a term that they would sign a document setting out the settlement terms.

[2] Ms Gasser subsequently refused to sign the settlement terms and maintains that they are not binding and that she will not sign the terms until they are amended. Ms Gasser has further stated her intention to continue with her unfair dismissal application unless the amendment she seeks is made to the settlement terms. The reasons for Ms Gasser’s position centre on the terms by which she agreed to release and discharge HSE from past, present and future claims relating to her employment and the cessation of her employment. Ms Gasser also asserts that she was distressed when she signified her acceptance of the settlement terms and did not understand them.

[3] In her unfair dismissal Ms Gasser made serious allegations of harassment, bullying and criminal conduct said to have been perpetrated against Ms Gasser and her two sons. The allegations were made against HSE managers, Unions, managers of companies Ms Gasser previously worked for and other unidentified persons. Ms Gasser asserts that the settlement terms will silence her and stop from pursuing these matters.

[4] The settlement terms were binding on Ms Gasser at the point she stated her agreement with the terms and that agreement was recorded on an audio device. Ms Gasser was informed that this would be the case before she agreed to the terms and her acceptance of this is also recorded.

[5] The settlement terms do not prevent Ms Gasser from pursuing allegations of criminal conduct against any person she believes has engaged in such conduct. The settlement terms do not bind Ms Gasser’s sons or prevent them pursuing any action against any person and nor do they prevent Ms Gasser from supporting or assisting her sons in relation to such action. Ms Gasser has refused to accept that this is the case and maintains her position about the settlement terms. Ms Gasser has also demanded to be paid an amount of money included in the settlement terms in circumstances where she is not entitled to such payment until she signs them and thereby complies with what was agreed.

[6] After unsuccessfully attempting to address Ms Gasser’s concerns with the terms of settlement by making minor amendments, HSE filed an application under s. 399A of the Fair Work Act 2009 (Act)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 348
Decision Date: 1 MARCH 2021

CaseChat Overview and Summary

Ms Sonja Gasser, a former employee of HSE Mining Pty Ltd, applied to the Fair Work Commission for an unfair dismissal remedy. Ms Gasser claimed that her dismissal was unjust, alleging that she was dismissed for raising health and safety concerns in the workplace. HSE Mining Pty Ltd argued that Ms Gasser was dismissed due to poor performance and insubordination. The Fair Work Commission was tasked with determining whether Ms Gasser's dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009.

The primary legal issue before the Commission was whether Ms Gasser's dismissal was justified or if it constituted an unfair dismissal. The Commission considered whether the employer had a valid reason related to Ms Gasser's capacity or conduct, and whether the employer followed a fair process. Additionally, the Commission assessed whether the dismissal was a reasonable management action in the circumstances.

The Commission found that Ms Gasser's dismissal was not harsh, unjust, or unreasonable. It was established that Ms Gasser was dismissed for her conduct, which included insubordination and failure to follow instructions, rather than for raising health and safety concerns. The employer had provided evidence of performance issues and incidents of insubordination prior to her dismissal. The Commission also found that the employer followed a fair process by conducting a disciplinary investigation and providing Ms Gasser with an opportunity to respond to the allegations. Therefore, the application for an unfair dismissal remedy was dismissed.

Orders