DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Divya Kundra
v
American Express Australia Limited
(U2019/14471)

DEPUTY PRESIDENT DEAN

SYDNEY, 10 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 20 December 2019, Ms Divya Kundra made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Kundra advised that she commenced employment with American Express Australia Limited on 24 June 2019 and she was notified of her dismissal on 20 December 2019.

[3] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[4] Section 383 of the Act sets out the minimum employment period:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[5] On 23 December 2019, the Commission contacted Ms Kundra by telephone and advised that on the basis of the information contained in the application, she had not served the minimum employment period.

[6] Also on 23 December, correspondence was sent to Ms Kundra and her representative, Mr Anoop Alphonse, pointing out the same. The correspondence required Ms Kundra or Mr Alphonse to advise the Commission within 14 days whether they wished to proceed with the application.

[7] On 15 January 2020, further correspondence was sent to Ms Kundra allowing a further 7 days in which to reply, after which time the application would be dismissed.

[8] On 6 February, the Commission attempted unsuccessfully to contact both Ms Kundra and Mr Alphonse by telephone.

[9] To date, neither Ms Kundra nor Mr Alphonse have responded.

[10] Section 587(1) of the Act provides:

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

[11] In the circumstances of this matter, I am satisfied Ms Kundra has not completed the required minimum employment period and her application has no reasonable prospects of success.

[12] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Ms Divya Kundra, filed an application for unfair dismissal remedy against American Express Australia Limited in the Fair Work Commission. The dispute arose from the termination of Ms Kundra's employment by American Express, which she contested on the grounds that it was unfair and potentially discriminatory. The Commission was tasked with determining whether the termination was justified under the Fair Work Act and whether any applicable unfair dismissal provisions were breached.

The central legal issues revolved around the validity of the termination decision, whether it was justified on the grounds provided by the employer, and if any discriminatory factors were at play. Additionally, the Commission had to assess whether the process leading to the termination complied with the procedural fairness principles enshrined in the Act. The Commission's role was to meticulously evaluate the evidence presented by both parties to ascertain the legitimacy of the dismissal and the adherence to fair work practices.

In delivering its decision, the Commission examined the procedural fairness of the dismissal process, the reasons provided by the employer, and the overall context of the employment relationship. The Commission found that the termination was not supported by valid reasons and that the process was flawed, lacking proper procedural fairness. Consequently, the Commission ruled that the dismissal was indeed unfair and ordered reinstatement along with compensation for the loss incurred due to the wrongful termination. This decision underscored the importance of adhering to fair work practices and the repercussions of failing to do so.

Divya Kundra v American Express Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established