Ayesha Aqeel v Koureli Pty Ltd - [2023] FWC 2196

[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…

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: [2023] FWC 2196
Decision Date: 1 SEPTEMBER 2023

CaseChat Overview and Summary

Ayesha Aqeel sought a remedy for unfair dismissal against Koureli Pty Ltd under section 394 of the Fair Work Act 2009, following her dismissal from employment. The matter was initially allocated for conciliation, which resulted in a settlement agreement reached between the parties on 12 July 2023. Despite this agreement, the Respondent failed to sign the formal terms of settlement, leading to the Applicant reopening the matter and requesting its dismissal. The Commissioner was required to determine whether a binding settlement agreement had been reached between the parties and, if so, whether the application should be dismissed.

The central legal issue before the Commissioner was whether a binding settlement agreement had been reached between the Applicant and the Respondent at the conciliation held on 12 July 2023. This issue was critical because if a binding agreement had indeed been reached, the application would lack reasonable prospects of success and could be dismissed. The Commissioner had to interpret the terms of the settlement and the parties' intentions, referencing previous case law to determine the nature of the agreement.

The Commissioner concluded that the Applicant and the Respondent had reached a binding settlement agreement at the conciliation on 12 July 2023. The Commissioner found that despite the Respondent's failure to sign the formal terms, the evidence supported that the parties intended to be immediately bound by the agreed terms and had proposed to document them in a fuller form. This conclusion was based on the Applicant's representation and the nature of the negotiations as outlined in Singh v Sydney Trains. Given this finding, the Commissioner determined that the application had no reasonable prospect of success and dismissed the matter under section 587 of the FW Act.

The Commission dismissed the application of Mrs Aqeel pursuant to section 587 of the Fair Work Act 2009 on the grounds that it had no reasonable prospect of success, following the determination that a binding settlement agreement had been reached between the parties.

Orders