Ashwin Panchal v Utopia CA Pty Ltd T/A Utopia

[2016] FWC 5473

[2016] FWC 5473

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ashwin Panchal
v
Utopia CA Pty Ltd T/A Utopia
(U2014/16662)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 8 AUGUST 2016

Application to reopen unfair dismissal application – refused – no basis for reconsideration of the application

[1] On 4 August 2016, I advised Mr Panchal that I was not prepared to agree to his request to reopen the unfair dismissal application he lodged in the Fair Work Commission (the Commission) on 24 December 2014. I undertook to provide more detailed reasons for my conclusion in this matter and have set out the basis for my conclusion in the following terms.

[2] Mr Panchal’s application was made on 24 December 2014 with respect to the termination of his employment with Utopia CA Pty Ltd T/A Utopia (Utopia) on 12 December 2014. The application was the subject of a conciliation conference before Commissioner Riordan on 9 June 2015. An agreement was reached in this conference and was confirmed in a Deed of Release/Agreement signed by both parties on that same day. This Deed stated:

“This application is settled on the following terms and settlement is dependent upon compliance with these terms:

1. The respondent will pay the applicant $2,948 (2 weeks pay) within 14 days (23 June 2015) taxed as an eligible termination payment.

2. The respondent will provide the applicant with a Certificate of Service.

3. The parties agree not to disparage each other.

4. This is a once and for all settlement of all matters arising between the applicant and the respondent during the course of employment and at cessation of employment.

5. These terms are confidential.”

[3] I have referred to this Deed as the Agreement.

[4] I note that, whilst no Notice of Discontinuance was received, the Commission closed Mr Panchal’s application following confirmation of the payment of the amount specified. On 2 June 2016, Mr Panchal requested that his application be listed for further consideration by the Commission. This request was referred to me for consideration. It was listed for a conference on 4 August 2016 in Perth.

[5] Mr Panchal attended this conference and provided a detailed submission in support of his position prior to the conference. Ms Whiting from Utopia advised that she would attend the conference and also forwarded a written submission. However, Ms Whiting did not attend and enquiries about her whereabouts revealed that she was at a funeral at that time. Consequently, I convened the conference without her. My conclusions in this matter were simply based on the information provided by Mr Panchal.

[6] In overall terms, Mr Panchal advised that he did not properly understand the Agreement reached and he disputed the extent to which there was an enforceable agreement, or that the terms of that Agreement were not honoured by Utopia. I was not satisfied that any of Mr Panchal’s arguments in this respect were sustainable.

[7] Mr Panchal agreed that he had been paid the amount specified in the Agreement, but asserts that he was not given the appropriate Group Certificate. Notwithstanding this, it is very clear that the payment terms of the 9 June 2015 Agreement were met.

[8] Mr Panchal disputes the description of the duties recorded in the Statement of Service which he concedes was provided to him under the second element of the Agreement. The information provided to me confirms that a Statement of Service was provided to him. The Agreement did not detail the content of that statement and I am satisfied that this second element of the Agreement was met.

[9] Mr Panchal asserts that Utopia breached the non-disparagement terms of the Agreement by making complaints to the Tax Practitioner’s Board and to CPA Australia. Mr Panchal’s complaint in this respect must be seen in the context of acrimonious exchanges between he and Utopia on the day after the Agreement was reached. The information before me does not permit a conclusion about who initiated these exchanges, and I do not consider these exchanges, in June 2015 represent a basis for now reopening Mr Panchal’s unfair dismissal application. Simply put, if Mr Panchal believes that he is being improperly disparaged, he has the capacity to take action in another jurisdiction to pursue that complaint. It simply cannot be the case that a concern about disparaging comments being exchanged between parties a year ago can form the basis for reopening the entire unfair dismissal application.

[10] The Agreement reached between the parties specified that it resolved all matters between the parties. Mr Panchal has acknowledged that he made a claim in the Western Australian Industrial Relations Commission for further payments he believed were due to him from Utopia. It was only after his claim in this respect was rejected that he sought to have this unfair dismissal application reopened. Mr Panchal asserts that he did not understand that the Agreement stopped him from making such a claim. I simply do not find Mr Panchal’s assertions in this respect to be credible.

[11] Mr Panchal also makes other assertions about the Agreement. He asserts that it is not an enforceable Deed because his signature, and that of Ms Whiting, were not separately witnessed. Mr Panchal agrees that he saw Ms Whiting sign the Agreement and that she was present when he signed it. I do not regard the Agreement to be flawed in this respect. Mr Panchal has accepted the payment from Utopia and has not sought to refund this payment.

[12] Notwithstanding this, Mr Panchal now asserts that he is seeking justice and wants the Commission to give Utopia a “life time lesson” for their unfair attitude with employees. His assertion in this respect is fundamentally inconsistent with the Agreement he reached on 9 June 2015. Mr Panchal appears to have changed his mind in a manner that does not form any basis for reopening his application more than twelve months after the Agreement.

[13] Mr Panchal entered into an Agreement which provided him with a financial benefit. He effectively disregarded the obligation not to take further action against Utopia and engaged in critical comments directed at Utopia. More than a year after he reached this Agreement, he now seeks to pursue further action against Utopia. Mr Panchal’s application must be regarded as closed with the effluxion of time. I am not persuaded that the Commission has the jurisdiction to reopen Mr Panchal’s application in these circumstances. Notwithstanding that, even if that jurisdiction exists, there is simply no basis for the Commission to accede to Mr Panchal’s request. Mr Panchal’s request to reopen his application was refused on this basis. To the extent necessary, an Order (PR583876) to this effect will be issued.

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<Price code A, PR583875>