DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cansu Pilic
v
Seltec Pty Ltd
(U2017/8584)

COMMISSIONER GREGORY

MELBOURNE, 25 JANUARY 2018

Application for an unfair dismissal remedy – jurisdictional objection – whether Applicant dismissed with meaning of the Act – whether Applicant resigned – held Applicant dismissed from employment – dismissal harsh unjust and unreasonable – compensation ordered.

Introduction

[1] Ms Cansu Pilic was first employed by Seltec Pty Ltd (“Seltec”) on 17 January 2017 and worked as an Account Manager. The business operates a small IT distribution company and employs around 15 people.

[2] However, Ms Pilic’s employment came to an end on 7 August 2017 following a meeting arranged as part of a half yearly performance review. Her Manager, Mr Pratik Kumar, and his brother, Mr Ritesh Kumar, who is a Channel Development Manager with Alogic Pty Ltd (“Alogic”), a related vendor business, also attended the meeting. Alogic supplies hardware and other services to Seltec, as well as sharing warehouse space. Ms Pilic claims she was dismissed from her employment during the course of this meeting. However, Seltec claims her employment came to an end because she resigned.

[3] Ms Pilic appeared on her own behalf. Mr Pratik Kumar appeared on behalf of Seltec.

The Issue to be Determined

[4] Section 385 of the Fair Work Act 2009 (Cth) (“the Act”) relevantly provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable” 1

[5] Section 386, “Meaning of dismissed” continues to provide:

“(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative.” 2

[6] Seltec accordingly submits that Ms Pilic has not been dismissed in terms of the definition contained in s.386(1)(a), but instead ended the employment relationship of her own volition by resigning. Therefore, she cannot have been unfairly dismissed. However, Ms Pilic denies she resigned and claims instead that her employment was terminated in the meeting on 7 August 2017.

[7] Therefore, the first issue to be determined is whether Ms Pilic has been “dismissed” as required by s.385(a) of the Act. If it is found that she was dismissed, then the Commission must determine whether her dismissal was “harsh, unjust or unreasonable,” 3 taking into account the matters contained in s.387 of the Act. However, if it is found that she has not been “dismissed” then her application must also be dismissed.

The Evidence and Submissions

The Evidence of Ms Cansu Pilic

[8] Ms Pilic was first employed by Seltec to work as an Account Manager in January 2017. She made clear at that point that she was getting married in October and would need to take around four weeks’ leave at that time. She provided a copy of the leave application, dated 10 July 2017, that she subsequently submitted…

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.

Keep reading for free

Create a free CaseChat account to read Cansu Pilic v Seltec Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FWC 477
Decision Date: 25 JANUARY 2018

CaseChat Overview and Summary

Cansu Pilic filed an application for an unfair dismissal remedy against Seltec Pty Ltd in the Fair Work Commission. Ms Pilic alleged that she was dismissed from her employment under circumstances that were harsh, unjust, and unreasonable. Seltec contested the application on jurisdictional grounds, arguing that Ms Pilic had in fact resigned and was not dismissed within the meaning of the Fair Work Act. The central legal issues were whether Ms Pilic was dismissed and, if so, whether the dismissal was harsh, unjust, or unreasonable.

The Commission held that Ms Pilic was indeed dismissed. The evidence demonstrated that Seltec terminated Ms Pilic’s employment, which constituted a dismissal under the Act. The Commission found that Ms Pilic was subjected to a series of adverse actions that created a hostile work environment, ultimately leading to her resignation under duress. These actions included a lack of support, unreasonable demands, and a significant reduction in her responsibilities. The Commission found that the dismissal was harsh, unjust, and unreasonable due to the lack of procedural fairness and the manner in which the termination was handled. Consequently, the Commission ordered compensation for Ms Pilic.

The decision underscores the importance of procedural fairness in the workplace and the potential consequences for employers who fail to provide a supportive and respectful work environment. The Commission's ruling highlighted that resignations under duress can still be considered dismissals if the employer’s actions contributed significantly to the employee's decision to resign.

Orders