Basel Alogaidi v Telstra Corporation Limited

[2021] FWC 5320

[2021] FWC 5320

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Basel Alogaidi
v
Telstra Corporation Limited
(C2020/7071)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 AUGUST 2021

Application to deal with a dispute – Settlement agreement reached – Application dismissed pursuant to s.587of the Fair Work Act 2009.

[1] Mr Basel Alogaidi has previously filed an application (the Application) under s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute he had with his now former employer Telstra Corporation Limited (Telstra). In a decision dated 19 May 2021 1 I determined that the Commission had jurisdiction to deal with Mr Alogaidi’s dispute. That decision sets out the factual background to the dispute. I do not repeat that here, suffice to say that I dismissed Telstra’s jurisdictional objection.

[2] At a conference I conducted on 18 June 2021, the parties were invited to have discussions to resolve the matters in dispute. These discussions resulted in Telstra making an offer to Mr Alogaidi, which I conveyed to him and which was accepted by Mr Alogaidi:

•  Within 21 days of Mr Alogaidi signing a settlement agreement document (to be drafted by Telstra) and filing a Notice of Discontinuance, Telstra was to pay Mr Alogaidi $2,500.00 gross (less taxation according to law).

•  Mr Alogaidi was to file the Notice of Discontinuance within 7 days of signing the settlement agreement document.

•  Mr Alogaidi was to release Telstra from all claims past, present and future in relation to his employment and the dispute.

•  The parties were to keep the terms of settlement confidential.

•  The parties agreed not to disparage one another.

[3] On 21 July 2021 Telstra contacted my chambers to advise that the parties were having difficulty reaching agreement on the written terms of the settlement agreement document and sought my assistance to finalise the matter. In an email dated 22 July 2021 I confirmed with the parties the terms of the agreement I had recorded at the conference. Mr Alogaidi was invited to comment and in response he stated in an email dated 26 July 2021 that he did not want to release Telstra “from everything” and that his suggested changes were meant to “limit the release to the matter in dispute which was the performance review.” Mr Alogaidi conveyed that in his understanding, the wording in the settlement agreement document meant that he could never have a dispute with Telstra in the future and bring it to any arbitration. He also asserted that the agreement reached did not include releasing Telstra from claims about the separation from his employment. In a subsequent email dated 26 July 2021, Mr Alogaidi maintained there was a difference between his employment and any separation from his employment and stated “I am not intending to not be bound by the agreement reached.”

[4] As the parties remained in dispute as to the terms of the settlement agreement, I wrote to the parties on 11 August 2021 and stated that while it remained open to them to comply with their various obligations under the settlement agreement that was reached at the 18 June 2021 conference, I was considering whether I should of my own motion dismiss Mr Alogaidi’s application under s.587 of the Act because it has no reasonable prospect of success having regard to the decision in Australian Postal Corporation v Gorman. 2 I indicated to the parties that I considered that case is authority for the proposition that if there is a binding settlement agreement between parties, the application that gave rise to the settlement agreement has no reasonable prospects of success and may be dismissed. I invited the parties to file written submissions in response and referred them to the High Court’s decision in Masters v Cameron.3

[5] Mr Alogaidi submitted that in his view, the Commission had done its duty in arbitrating the dispute and an agreement has been reached. He stated however “The failure of the parties to reach a final agreement is…related to Telstra refusing to discuss the terms of the contract.” Mr Alogaidi also stated, “I am happy if the Commission dismisses the case and it is left to the public to determine the outcome of this case, justice is not only about giving financial compensation, it is also moral compensation which doesn’t have a monetary value.”

[6] Telstra’s position is that terms were agreed at the 18 June 2021 conference and it wishes to be bound by them. Telstra maintains that the settlement agreement document it has drafted makes clear that the settlement relates to all claims arising directly or indirectly out of the employment, the termination of employment, the Application and various other allegations made by Mr Alogaidi about his employment, during his employment and disputes Mr Alogaidi’s view that claims related to his employment would not include claims related to the separation or termination of his employment. Telstra also confirmed it wished to be bound by the agreement reached on 18 June 2021 that the parties agree not to disparage one another, which Mr Alogaidi appears to now dispute.

[7] Telstra contends it made an offer to Mr Alogaidi at the 18 June 2021 conference which was accepted by Mr Alogaidi at that Conference and the terms of the agreement were to be recorded in a written agreement it would prepare. Telstra submits that there is a binding settlement agreement made at the conference on 18 June 2021 which falls within either the first or second class in Masters v Cameron on the basis that:

•  The terms had been agreed and the only remaining step was to formally document the bargain in a fuller and more precise form that was not different in effect and that this matter falls plainly within the first class of agreement; and/or

•  The agreed terms included that payment would be conditional upon execution of a formal document and a notice of discontinuance being filed and falls within the second class of agreement.

[8] Further, Telstra says any assertion that the agreement could not be completed until a document had been signed by both parties is misconceived. It says the agreement reached was not conditional on the settlement agreement document being signed and the elements relating to confidentiality, releases, statements about Telstra were agreed upon at the 18 June 2021 conference. Telstra confirmed that upon receipt of the executed settlement agreement document it has prepared and notice of discontinuance it will perform its side of the agreement.

Consideration

[9] In Masters v Cameron, the High Court held that a binding agreement could come about in the following manner:

“Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution.” 4

[10] Mr Alogaidi and Telstra reached a settlement agreement at the 18 June 2021 conference in the terms set out above at [2]. Before me, both parties agreed to those terms and confirmed that their agreement finalised all matters between them. They acknowledged that Telstra would draft a settlement agreement document reflecting the terms of their agreement. The agreement fell within either the first or second category described in Masters v Cameron. There is a binding contract.

[11] In Australian Postal Corporation v Gorman, 5 Besanko J held that the existence of a binding settlement or “accord and satisfaction” extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement.6

[12] His Honour stated:

“[33] There is nothing in the Act which suggests that an accord and satisfaction should not be recognised…the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.” 7

[13] Australian Postal Corporation v Gorman establishes that if there is a binding agreement between the parties, the Commission has the power under s.587(1) of the Act to dismiss an application on the basis that it has no reasonable prospects of success.

[14] Section 587(1) of the Act provides as follows:

“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.”

[15] As I have found that the parties reached agreement at the 18 June 2021 conference and I am satisfied that the agreement was of the first or second type discussed in Masters v Cameron, I am persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss the Application on the basis that it has no reasonable prospects of success. In deciding to exercise my discretion, I have noted Telstra’s confirmation that upon receipt of the signed settlement agreement document and the notice of discontinuance it will perform its obligations under the agreement.

[16] For the reasons outlined above, I find that Mr Alogaidi entered into a binding settlement agreement of his claim and therefore the Application is dismissed. An Order to this effect will be issued in conjunction with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR733257>

 1   [2021] FWC 2882.

 2 [2011] FCA 975.

 3 [1954] 91 CLR 353.

 4 [1954] 91 CLR 353.at 360.

 5 [2011] FCA 975.

 6 Ibid at [31].

 7 Ibid at [33].