Ayesha Aqeel v Koureli Pty Ltd
[2023] FWC 2196
•1 SEPTEMBER 2023
| [2023] FWC 2196 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ayesha Aqeel
v
Koureli Pty Ltd
(U2023/3702)
| COMMISSIONER BISSETT | MELBOURNE, 1 SEPTEMBER 2023 |
Application for an unfair dismissal remedy
On 1 May 2023, Mrs Ayesha Aqeel (the Applicant) made an application to the Commission in which she sought a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). While the application was initially made in relation to Corporate Commercial Facilities, the named Respondent was subsequently amended to Koureli Pty Ltd (the Respondent) by consent of the parties.
The matter was allocated for conciliation before a staff conciliator and subsequently listed for conciliation on 12 July 2023. The Commission records indicate that the matter settled at that conciliation and terms of settlement were provided to the parties.
On 10 August 2023 the Commission received an email from the Applicant’s representative that said:
Dear UFD team,
The parties final reached agreement to settle the above matter, an unfair dismissal application made by Ms Aqeel, during FWC conciliation on 12 July 2023. The parties agreed to use the FWC standard terms to reflect this settlement agreement. The final nature of the terms agreed upon is reflected in correspondence sent by conciliator Mandy Polgar. I emailed the representative of the employer, Koureli Ptd Ltd, Chris Perdikaris, copying Napoleon Giannoudis, the director of Koureli Pty Ltd, to sign the FWC standard terms of settlement on 17 July, 20 July and 24 July. I have not heard back nor received a signed copy of the terms.
The applicant has not discontinued the matter.
I request that the matter be reopened because binding agreement was reached between the parties.
The file was subsequently referred to me and listed for Mention on 18 August 2023.
The Respondent failed to provide contact details for the Mention and were non-responsive, despite multiple attempts by my Associate to attain Appearances.
The Mention proceeded on 18 August 2023, with attempts to contact a representative for the Respondent prior to the Mention also proving unsuccessful. At the Mention, the Applicant’s representative advised that, in her view, the matter had settled at conciliation.
On 18 August 2023, I therefore had correspondence sent to the Respondent. In that email I indicated that:
Prior to determining if a binding settlement agreement has been reached – which I consider to be contested by the Respondent given its failure to sign and return the settlement agreement and, presumably, comply with its terms – submissions are invited from the Respondent as to its view on the status of the settlement agreement. (Emphasis in original)
The Respondent failed to respond to this email by the date provided for it to do so.
On 25 August 2023, I had further correspondence sent to the Respondent. This correspondence advised that no reply had been received to the Commission’s earlier email but provided an extension until 28 August 2023 for any submissions to be provided to the Commission. The Respondent was also advised that, should it not provide any submissions, I would issue my decision as to whether a binding settlement agreement had been reached shortly after 28 August 2023.
The Respondent failed to reply to the Commission’s correspondence.
Was a binding settlement agreement reached?
On the basis of the information provided to the Commission by the Applicant’s representative, I am satisfied that the parties reached an agreement to settle the unfair dismissal application at conciliation on 12 July 2023.
I am aware that the Respondent has failed to sign the written terms of the agreement, but I do not consider that this reflects that no agreement was reached.
The types of agreement that may be reached between the parties were summarised in Singh v Sydney Trains[1] at paragraph [53] as follows:
If parties who have been in negotiations reach agreement on terms of a contractual nature and also agree that those terms will be dealt with by subsequent formal documentation, there are several categories into which such negotiations fall. First, the parties reach finality, intend to be immediately bound, and propose restatement of the terms of settlement in a fuller or more precise form but not different in effect. Secondly, the parties have completely agreed all terms but performance of one or more terms is conditional on execution of a formal document. Thirdly, the parties did not intend to make a concluded bargain at all, unless and until they execute a formal contract. Fourthly, the parties intended to be bound immediately and exclusively by agreed terms while expecting to make a further contract in substitution containing, by concept, additional terms. (Citations omitted)
In this case, and on the basis of the material before me, I am satisfied that the parties reached finality as to the terms of their agreement on 12 July 2023. Further, I am satisfied that the parties intended to be immediately bound by those terms, and proposed that the terms of settlement be set out in a fuller form subsequent to that agreement, but to no different effect.
I also observe, for completeness, that the evidence would allow me to conclude that the parties had only reached an in-principle agreement — such agreement not taking force until the written terms were finalised and executed by the parties.
Should I dismiss the application?
In Australian Postal Corporation v Gorman,[2] Besanko J found that a valid agreement (‘accord and satisfaction’) extinguishes the existing (unfair dismissal) application, with a new cause of action based on the agreement reached. Whether there was an agreement reached is a question of fact to be determined by the Commission.
The Commission has the power to dismiss an application pursuant to s.587 of the FW Act. Section 587 states:
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.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
…
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
The circumstances under which the Commission can dismiss an application are not limited to those matters set out in s.587(1). As is apparent, a decision to dismiss an application can be made on the Commission’s own initiative.
I am satisfied that a binding settlement agreement has been reached between the parties. In these circumstances, I am also satisfied that the application has no reasonable prospect of success.
For this reason, I have determined to dismiss the application of Mrs Aqeel pursuant to s.587 of the FW Act, on the grounds that it has no reasonable prospect of success.
COMMISSIONER
[1] [2017] FWCFB 4562.
[2] [2011] FCA 975.
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