Thomas Thomson v SRG Global Mining (Australia) Pty Ltd
[2022] FWC 1604
•28 JUNE 2022
| [2022] FWC 1604 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Thomas Thomson
v
SRG Global Mining (Australia) Pty Ltd
(U2021/9133)
| COMMISSIONER BISSETT | MELBOURNE, 28 JUNE 2022 |
Application for an unfair dismissal remedy – binding settlement agreement reached – no reasonable prospects of success – application dismissed.
Mr Thomas Thomson has made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which he seeks a remedy for unfair dismissal. Mr Thomson was employed by SRG Global Mining (Australia) Pty Ltd (Respondent). The Applicant has made a request that his application be listed for hearing. The Respondent objects on the grounds that a binding settlement agreement was reached between the parties that fully settled the Applicant’s claim.
Background
The application for unfair dismissal was subject to conciliation before a staff conciliator on 17 November 2021 where the matter settled.
Later that day the staff conciliator sent a letter to the parties confirming settlement had been reached between the parties and that the terms of settlement would be sent “out by [the Respondent] by close of business on 19 November 2021.”
On 13 April 2022 the Mr Thomson’s representative, Ms Ren Lee from The Australian Workers’ Union, sent an email to the staff conciliator in which she said “…The parties have achieved a resolution of this matter in the previous conciliation however, the Respondents have unfortunately reneged on the agreement…and it would be appreciated if the matter could be relisted for a further hearing.”
A copy of this email was sent to the Respondent on 14 April 2022 who provided the following response:
…
Unfair Dismissal Settlement
4. The Unfair Dismissal conciliation was conducted on 17 November 2021.
5.During the conciliation it was agreed that reinstatement would be considered by SRG if Mr Thomson could provide the following:
a.the Employee will provide a fit for work clearance from their treating General Practitioner; and
b.The Employee will obtain a fitness for work clearance (both physical and Psychological) by a third party that is mutually agreed between the Employer and Employee;
6. The first draft Deed of Release was sent to Mr Thomson and Ms Lee on 19 November 2021 and requested the conditions be met by 24 December 2021.
7.Ms Lee responded the timeframe was too tight and requested this be extended to 24 February 2022, SRG agreed.
8.Appointments with independent medical assessors were booked…
…
10.SRG received the reports from the independent medical assessments on 22 February and 15 March.
11.SRG received the clearance from Mr Thomson’s treating practitioner on 30 March 2022.
12.SRG undertook an assessment of the positions available and current applicants including Mr Thomson and unfortunately were unable to find a suitable position for Mr Thomson.
13.SRG actioned the alternative agreement which was to change Mr Thomson’s termination reason to resignation and provide a statement of service.
Conclusion
14. SRG consider the Unfair Dismissal Process is settled and closed.
Following the receipt of the Respondent’s response I listed the matter for Hearing on 2 June 2022. At the Hearing I asked Mr Thomson and his representative to review the decisions in Masters v Cameron[1]; Australian Postal Corporation v Gorman[2] and Singh v Sydney Trains[3] and to either provide me with a note on what I should take from those decisions in the circumstances of this case or otherwise advise if Mr Thomson wishes to continue to pursue his case (to re-open a closed application) in the Commission. I requested that the information sought by me be provided to the Commission and the Respondent by 4.00 pm on Thursday 9 June 2022.
On 9 June 2022 the Applicant’s representative wrote to the Commission requesting an extension of time until 16 June 2022 to consider the cases and to provide a note of response. Despite the Commission granting an extension of time until 16 June 2022, Mr Thomson and his representative failed to provide the information by the due date.
On 21 June 2022 Mr Thomson’s representative sent an email to the Commission advising that “[t]he Applicant is in the process of obtaining legal advice and will be able to respond by end of today if he wishes to proceed.”
As the Applicant failed to provide the requested advice, on 22 June 2022 the Commission sent an email to Mr Thomson’s Representative advising that “…[i]f the Applicant does not advise whether or not he wishes to proceed with his application by 4.00 pm today the Commissioner intends to make a decision dismissing the application.”
To date neither Mr Thomson nor his representative have provided the requested information.
Consideration
Section 587(1) of the FW Act provides that:
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.
In the circumstances I am satisfied that the parties reached a binding agreement regarding Mr Thomson’s application for unfair dismissal. Accordingly, the application has no reasonable prospects of success. Accordingly, the application is dismissed under s.587(1)(c) of the FW Act. An Order[4] to this effect will be issued shortly.
COMMISSIONER
<PR742975>
[1] (1954) 91 CLR 353 (in particular paragraphs [9]-[12])
[2] [2011] FCA 975 (in particular paragraphs [30]-]37])
[3] [2017] FWCFB 4562 (in particular paragraphs [45]-[54]
[4] PR742976
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