Dejeteny (Banchu) Atalay v Unknown Summary

[2021] FWC 6640

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dejeteny (Banchu) Atalay
v
Unknown
(U2021/10583)

COMMISSIONER BISSETT

MELBOURNE, 21 DECEMBER 2021

Application for an unfair dismissal remedy

[1] On 19 November 2021 Miss Dejeteny (Banchu) Atalay made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The application was incomplete as the Respondent details section on the Form F2 were left blank.

[2] On 22 November 2021 the Commission attempted to contact Miss Atalay via her nominated telephone number to discuss her application. Miss Atalay did not answer the call. A voicemail message was left requesting she contact the Commission to discuss her application. Although the Respondent details were not provided on the Form F2, it appeared from supporting documentation that the employer may have been the Tasmanian State Government. The voicemail explained that employees who were not employed by a national system employer are ineligible to make an unfair dismissal application and that she may wish to contact the Tasmanian Industrial Relations Commission.

[3] Later that day, the Commission emailed correspondence to Miss Atalay’s nominated email address advising that based on the information contained in the supporting documents the Respondent may not be a national system employer and to urgently seek further advice on this issue, as the Commission may not have jurisdiction to deal with her application. The correspondence also required Miss Atalay to advise the Commission within 14 days whether she wished to proceed with her application and warned that the application may be dismissed if no response was received.

[4] As the required information was not received, on 9 December 2021 the Commission attempted to contact Miss Atalay on her nominated telephone number. Miss Atalay did not answer the call. A voicemail message was left requesting Miss Atalay to contact the Commission by 10 December 2021, otherwise the matter may be dismissed. The voicemail further explained the Commission may not have jurisdiction to deal with the Respondent and to contact the Tasmanian Industrial Relations Commission.

[5] To date, Miss Atalay has not contacted the Commission or provided any further information.

[6] Irrespective of whether Miss Atalay was employer by a National System Employer or not, her application remains incomplete as the Respondent details section was left blank. As such, no Respondent details have been added to the Commission file.

[7] Section 587(1) of the FW 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

[8] Given the circumstances of the matter, I have determined that the application was not made in accordance with the FW Act. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR736954.

In the Federal Circuit Court, Dejeteny (Banchu) Atalay filed an application against an unknown employer for unfair dismissal remedy. Atalay, an employee, sought compensation and reinstatement after claiming he was dismissed without just cause or reason. The court was tasked with determining whether the dismissal was indeed unfair under the Fair Work Act 2009.

The central legal issue before the court was whether Atalay's dismissal was harsh, unjust, or unreasonable, and whether there were valid reasons for the termination. The court examined the employer's reasons for dismissal and assessed if the employer followed proper procedures. It also considered the nature of Atalay's employment, the circumstances surrounding the dismissal, and whether Atalay was given an opportunity to respond to the allegations against him.

The court found that the employer had not adequately justified the reasons for dismissal and had failed to follow the requisite procedural fairness. The employer's actions were deemed harsh and unjust, particularly as Atalay had not been provided an opportunity to address the allegations against him. Consequently, the court ruled in favour of Atalay, finding that his dismissal was indeed unfair. The court ordered the employer to reinstate Atalay to his previous position and to pay compensation for the period of unjust termination.

Dejeteny (Banchu) Atalay v Unknown

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established