Thomas Thomson v SRG Global Mining (Australia) Pty Ltd - [2022] FWC 1604

[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…

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: [2022] FWC 1604
Decision Date: 28 JUNE 2022

CaseChat Overview and Summary

The matter of Thomas Thomson v SRG Global Mining (Australia) Pty Ltd was heard by the Fair Work Commission in Australia, where Mr Thomson sought a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The application was opposed by SRG Global Mining, who argued that a binding settlement agreement had been reached between the parties, fully resolving Mr Thomson’s claim for unfair dismissal. The primary legal issue before the Commission was whether the application for unfair dismissal had reasonable prospects of success, given the existence of a binding settlement agreement between the parties.

The Commission considered the background and events leading to the settlement, including the conciliation held on 17 November 2021, where the parties reached an agreement that would be confirmed in writing by 19 November 2021. Despite initial claims by Mr Thomson that SRG had reneged on the agreement, it was clear from the evidence that the parties had met all the conditions stipulated in the settlement, including the provision of medical clearances and assessments. SRG had subsequently offered alternative arrangements, including changing the termination reason to resignation and providing a statement of service. Based on this, the Commission concluded that the unfair dismissal process was settled and closed.

In deciding whether the application had reasonable prospects of success, the Commission considered relevant case law and requested Mr Thomson and his representative to provide insights based on their review of the cases. Despite being granted an extension, Mr Thomson and his representative failed to provide the requested information, leading the Commission to conclude that the application had no reasonable prospects of success. The Commission dismissed the application under s.587(1)(c) of the FW Act, finding that the settlement agreement effectively resolved the matter.

An order dismissing the application for unfair dismissal was issued, finalising the dispute between the parties. This decision underscores the importance of adhering to settlement agreements and the consequences of failing to provide necessary information in a timely manner when requested by the Commission.

Orders