Benan Turyan v Ashley Services Group Ltd

[2023] FWC 1873

[2023] FWC 1873

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Benan Turyan
v

Ashley Services Group Ltd

(C2023/3685)

DEPUTY PRESIDENT COLMAN MELBOURNE, 28 JULY 2023

Section 365 – jurisdictional objection – no allegation of contravention – application dismissed.

1. This is an edited version of a decision given ex tempore earlier today. Benan Turyan has made an application under s 365 of the Fair Work Act 2009 (Act). Ashley Services Group Ltd objects to the application on the basis that the application does not allege that Ms Turyan’s dismissal was in contravention of Part 3-1 of the Act.  

1. The Commission generally does not have a determinative function in s 365 matters unless all parties consent to arbitration. Rather, the Commission deals with these matters by other means, such as mediation. If all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, it issues a certificate allowing the applicant to take the claim to a court. However, where a jurisdictional objection is raised, the Commission must determine it (see generally Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152).

1. Section 365 of the Act provides as follows:

“If:

(a)   a person has been dismissed; and

(b)   the person, or an industrial association that is entitled to represent the industrial interest of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.” (Emphasis added).

1. The Commission can only deal with a dispute that is the subject of an application under s 365 if the applicant has been dismissed and alleges that the dismissal contravened Part 3-1. The respondent contends that this second requirement has not been met in the present matter.

1. The Commission’s form F8 asks applicants to identify which provisions in Part 3-1 have been contravened. A note emphasises that a general protections application should only be made if the employer has taken adverse action against the applicant because the applicant has one of the relevant protections listed. The form provides a reference to the Commission’s ‘General Protections Benchbook’ which contains information on general protections applications.

1. Ms Turyan said in her application that she was unfairly dismissed and that her termination was unjust and unfair. She said that the respondent did not advise her of any concerns about her performance, and that performance could not have been the reason for dismissal. She stated that she felt ‘set up’ because she was led to believe that the termination meeting was a sales meeting. She said that her dismissal was a personal attack by the company, and that it was unprofessional. However, the application does not identify any provision in Part 3-1 that is said to have been contravened. Nor does it describe facts which, if true, could constitute a contravention of these provisions.

1. The company’s form F8A response stated that during Ms Turyan’s three-month employment, there were various instances of poor performance, and that the company decided to dismiss Ms Turyan during her probationary period. There is nothing in the response that is indicative of a contravention of Part 3-1.

1. During the proceeding, I asked Ms Turyan whether she wished to clarify any aspect of her application, including why she had made the application. She said that her dismissal was unfair, that she had received no training and no explanation of the reason for her dismissal, and that the company’s claims in its F8A about her poor performance were fabricated. However, Ms Turyan did not allege that her dismissal contravened Part 3-1. A contention that a dismissal was unfair is not an allegation that the dismissal contravened the general protections provisions. Part 3-1 does not provide for a workplace right not to be unfairly dismissed.

1. In my opinion, nothing in Ms Turyan’s claim constitutes or is suggestive of an allegation of a contravention of Part 3-1. Neither the application nor Ms Turyan’s oral submissions contain any such allegations, nor do they allege facts that might be indicative of a contravention of Part 3-1. Because Ms Turyan does not allege that her dismissal was in contravention of Part 3-1, the requirement of s 365(b) is not satisfied, and the Commission has no jurisdiction to deal with the matter. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

B. Turyan for herself
M. Diamond for Ashley Services Group Ltd

Details of the proceeding:

2023
Melbourne
28 July

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