Tess Sindici v Artius Health Pty Ltd

[2020] FWC 6206

[2020] FWC 6206

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tess Sindici
v
Artius Health Pty Ltd
(U2020/11364)

COMMISSIONER BISSETT MELBOURNE, 19 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] Ms Tess Sindici (Applicant) was employed by Artius Health Pty Ltd (Respondent). Her employment was terminated on 30 July 2020. On 20 August 2020 the Applicant filed with the Fair Work Commission an application seeking relief from unfair dismissal. In filing its response to the Applicant the Respondent said that the dismissal was as case of genuine redundancy.

[2] The application proceeded by way of conciliation where it appears some settlement was reached. The terms of that settlement were sent to the parties on 22 September 2020.

[3] On 27 October 2020 the Applicant wrote to the Commission and said:

I would like to re open the above case as the matter is still unresolved. I have attempted to contact my previous employer (copies of email correspondence below) however he is not responding to the matter. I would appreciate your assistance in the matter please.

[4] As a result of this correspondence the Commission wrote to both parties and directed that they file any submissions and evidence on which they relied with respect to whether a biding settlement agreement had been reached between the parties.

[5] The Applicant responded to the direction and filed a very brief submission in which she indicated that she “would like to request a review of my case as unfortunately despite a Conciliation taking place, the matter is still unresolved. I have attempted to contact my previous employer Paul Stokes (copies of email correspondences below) however he is not responding to the matter.”

[6] The Respondent did not reply to the Directions issued. Further correspondence was sent to the Respondent extending the time within which it could file any relevant submissions and evidence. No submissions were filed.

[7] There being no submissions filed to the contrary I have determined this matter on the basis of the (limited) material filed by the Applicant.

Was a settlement agreement reached?

[8] Whilst clearly there were discussion and some accommodation reached between the Applicant and Respondent during conciliation of the application there is nothing before me that would support a conclusion that the agreement reached between the parties was a binding settlement agreement that would extinguish the unfair dismissal application before the Commission.

[9] In Singh v Sydney Trains 1 the Full Bench of the Commission said:

[53] 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. 2  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.3

[54] When parties do reach an agreement of the first or fourth category referred to in Masters v Cameron and Baulkham Hills, they will be bound by the terms of their bargain, notwithstanding a later disagreement between the parties about the terms to be included in a deed or written agreement between them. 4 

The Full Bench in Singh also said that:

[51] Conduct of the parties after the making of the supposed agreement is relevant. Such conduct may be considered in order to determine whether the prior dealings between the parties gave rise to a binding contract. 5 

[10] In this case the Respondent has taken no action to either finalise (execute) the agreement reached between the parties or to meet the obligations apparently placed on the Respondent by the Agreement. Such conduct, in this case, suggests that the Respondent did not intend to reach a binding agreement with the Applicant.

Conclusion

[11] In circumstances where the Respondent has failed to respond to directions issued by the Commission in relation to whether a binding settlement agreement was reached between the Applicant and Respondent arising from conciliation I am not convinced that such an agreement was reached. A Respondent cannot attend conciliation, feign agreement and then walk away with no consequneces.

[12] For this reason the application for unfair dismissal is not completed. The file will be referred for arbitration.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR724693>

 1   [2017] FWC 4015.

 2   Masters v Cameron (1954) 91 CLR 353.

 3   Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 (Baulkham Hills).

 4   Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1 at [10]-[12]; Howe v Connell [1997] NSWSC 432.

 5    Saliba at [53]-[54], applying B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 at 9149 per Glass JA.