Application for relief from unfair dismissal – interlocutory matters – representation and whether the parties had negotiated binding terms of settlement – Masters v Cameron categories – reemployment to a non safety critical position – ‘essential terms’ agreed – whether an acceptance of an offer must be complete and unequivocal – essential terms not altered or replaced – Masters v Cameron applies – binding settlement extinguished claim – unfair dismissal application has no reasonable prospects of success – application dismissed.

INTRODUCTION

[1] Mr Subeg Singh (the ‘applicant’) was dismissed from his employment as a Team Leader with Sydney Trains (the ‘respondent’) on 30 November 2016 following a lengthy investigation into two safety incidents on the Illawarra line on 1 August 2015. For the purposes of this decision it is unnecessary to set out the detail of the incidents or the investigation; suffice to note that the reasons for the applicant’s dismissal were said to be his failure to follow safety policies, procedures and guidelines while working in a safety critical location, causing significant risk of harm to himself, his team and members of the public.

[2] The applicant disputes his dismissal as having been based on incorrect findings of fact. In addition, he claimed his dismissal was harsh, because any breaches (although denied) were minor. Mr Singh has 34 years of unblemished service with the respondent, and at 77 years of age, would find it impossible to find alternative employment.

[3] On 24 October 2016, the applicant had filed an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’); although it may be observed that his dismissal had not yet taken effect at that point in time. In any event, nothing turns on this fact. The applicant sought reinstatement and compensation for lost remuneration.

[4] The s 394 application was listed for conciliation and directions on 10 January 2017. At that time, the applicant was unrepresented. The respondent was represented by Ms A Sharp, Solicitor, with permission being granted, pursuant to s 596 of the Act, for the respondent to be represented by a lawyer. Attempts at settling the matter proved unsuccessful and the application was listed for four days of hearing. Nevertheless, I recommended the applicant seek advice about the matter. The Commission was subsequently informed that he was to be represented by law firm, Walter Madden Jenkins (Ms P Austin). It is apparent that the parties then engaged in negotiations to settle the application and on 16 February 2017, the Commission was advised that the matter had ‘settled in principle’ and the hearing dates could be vacated.

[5] However, on 22 March 2017, the Commission received a Notice of Representative Ceasing to Act (F54) and the applicant advised that he was now represented by an…

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.

Continue reading Singh v Sydney Trains

Details

AGLC: Singh v Sydney Trains [2017] FWC 4015
Case: [2017] FWC 4015
Decision Date: 7 AUGUST 2017

CaseChat Overview and Summary

In the case of Singh v Sydney Trains, the applicant, Mr Singh, sought relief from an unfair dismissal by Sydney Trains, his former employer. The application was dismissed by the Fair Work Commission. The dispute centred around whether Mr Singh had been unfairly dismissed and if he should be reinstated or compensated. The Fair Work Commission was the court tasked with determining the merits of Mr Singh's application.

The legal issues before the court involved the interpretation of the terms of any alleged settlement between the parties and whether these terms were binding. Specifically, the court had to decide if Mr Singh's acceptance of a settlement offer was complete and unequivocal, and if the essential terms of employment were altered or replaced. Another issue was whether the categories set out in Masters v Cameron applied, particularly regarding reemployment to a non-safety critical position.

The Fair Work Commission found that the parties had indeed negotiated binding terms of settlement, which included Mr Singh's reemployment to a non-safety critical position. The commission held that the acceptance of the offer was complete and unequivocal, and the essential terms of employment were not altered or replaced. Applying the principles from Masters v Cameron, the commission concluded that the binding settlement extinguished Mr Singh's claim for unfair dismissal. As a result, the application was dismissed because it had no reasonable prospects of success.

Orders