Esin Coskun v Cleanaway T/A Cleanaway

[2019] FWC 1741

[2019] FWC 1741

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Esin Coskun
v
Cleanaway T/A Cleanaway
(U2019/1798)

DEPUTY PRESIDENT CLANCY MELBOURNE, 20 MARCH 2019

Application for an unfair dismissal remedy.

[1] On 19 February 2019, Ms Esin Coskun made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Coskun’s application was lodged on her behalf by her paid agent, Mr Leo Close of Close Consulting.

[2] In her Form F2 – Unfair Dismissal Application, Ms Coskun stated that she commenced employment with Cleanaway on 12 November 2018 and that her employment was terminated on 29 January 2019 as a result of her resignation tendered on the same day. As to the reason for the dismissal, Ms Coskun submitted that her application was made pursuant to s.386(1)(b) of the Act, which states:

“386 Meaning of dismissed

(1) A person has been dismissed if:

…

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[3] On 21 February 2019, the Commission contacted Mr Close and advised him that it appeared from Ms Coskun’s application that she did not meet the minimum employment period. According to the Commission’s records, Mr Close advised that there were fixed term contracts which demonstrated that Ms Coskun worked more than six months.

[4] Following the telephone conversation with Mr Close, the Commission emailed correspondence to Mr Close confirming the advice given over the telephone that it did not appear Ms Coskun had been employed for the minimum employment period required under the Act. The correspondence directed Mr Close to file in the Commission within 14 days any documents or evidence to support Ms Coskun’s claim of having served the minimum employment period.

[5] On 8 March 2019, Mr Close sought an extension to file Ms Coskun’s material by close of business on 15 March 2019.

[6] On 14 March 2019, Mr Close filed Ms Coskun’s material. This material was forwarded to Cleanaway on 18 March 2019.

Ms Coskun’s submissions

[7] In her material, Ms Coskun submitted that she was engaged on a six month fixed term contract with Cleanaway, ending 3 May 2019. She referred to her resignation letter dated 29 January 2019, which stated:

“Due to the stress and conflict as a result of bullying… and due to the mismanagement of the situation, I feel as though I have no choice but to discontinue my employment. I have been heavily stressed for some time now and cannot see it in me to physically and mentally continue working.”

[8] A significant proportion of Ms Coskun’s material described an ongoing deterioration of her employment relationship with Cleanaway due to alleged conduct by her workplace supervisor, leading up to her resignation. Ms Coskun further submitted that her resignation fell within the scope of s.386 of the Act, that it was in fact a constructive dismissal and therefore, that termination was at the initiative of Cleanaway.

[9] As to the minimum employment period, Ms Coskun submitted that she understood the requirements of s.383(a) and accepted that her application for remedy for unfair dismissal did not meet the minimum employment period. Furthermore, her material stated:

“[Ms Coskun] asks the Commission give due and fair consideration to considering exceptional circumstances in this application. In lieu of this application being successful and proceeding to a conciliation, she only seeks the opportunity to have her grievance heard fairly. In the event the Commission dismisses the application, she would seek the assistance of the Commission to have her grievance dealt with under the terms set out in clause 9 of the [Clerks – Private Sector Award 2010].”

Consideration

[10] 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.”

[11] 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

(c) the application has no reasonable prospects of success.”

[12] Having regard to the circumstances of this matter, I am not persuaded that Ms Coskun has completed the required minimum employment period. As such, I am satisfied her application has no reasonable prospects of success. Ms Coskun’s submissions about the circumstances leading up to her resignation and purported constructive dismissal do not change this situation. As to Ms Coskun’s request for the Commission’s assistance to deal with her grievance in accordance with the terms set out in Clause 9 of the Clerks – Private Sector Award 2010,I am unable to deal with this under the present application.

[13] Ms Coskun’s application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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