DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Feray Tastepe
v
Alpha Flight Services
(U2017/2719)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 24 APRIL 2017

Application for an unfair dismissal remedy.

[1] On 12 March 2017, Ms Feray Tastepe made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Tastepe advised that she commenced employment with Alpha Flight Services on 21 September 2016 and was notified of her dismissal on 9 March 2017, with it taking effect that day.

[3] On 14 March 2017, a telephone call was made to Ms Tastepe, however, there was no answer and no voicemail was able to be left. On the same day, correspondence was sent to Ms Tastepe confirming that based on the information contained in the application, it appeared she had not served the minimum employment period. The correspondence required Ms Tastepe to file in the Fair Work Commission any documents or evidence to support her claim of having served the minimum employment period within 14 days. Ms Tastepe was advised in the absence of any material being received, her application may be dismissed.

[4] On 24 March 2017, a further attempt to telephone Ms Tastepe was made and a voicemail was left seeking a return call.

[5] On 29 March 2017, a final attempt to contact Ms Tastepe via telephone was made which was unsuccessful. Correspondence was sent to Ms Tastepe noting she had previously been directed to file material in support of her claim she had served the minimum employment period but had not done so. Ms Tastepe was given a further seven days to provide an explanation of why she did not respond to the direction contained in the correspondence of 14 March 2017. Ms Tastepe was advised that if there was no response, her application would be determined on the material currently before the Commission.

[6] To date, Ms Tastepe has not replied to the Commission’s correspondence.

[7] 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.

[8] 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.

[9] In the circumstances of this matter, I am satisfied Ms Tastepe has not completed the required minimum employment period.

[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

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

[11] Based on the material before me, I am not satisfied Ms Tastepe has completed the required minimum employment period and therefore, I consider her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued with this Decision

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Court of Australia, Feray Tastepe sought a remedy for unfair dismissal against Alpha Flight Services. Tastepe was employed by Alpha Flight Services and was dismissed following an incident involving a dispute with a passenger. He alleged that the dismissal was unfair and sought reinstatement and compensation.

The legal issues before the court included whether the dismissal was harsh, unjust, or unreasonable, and whether there were valid reasons related to Tastepe's capabilities or conduct that justified the termination. The court also had to consider the proportionality of the dismissal in response to the incident and the procedural fairness of the dismissal process.

The court found that the dismissal was not unfair, determining that there were valid reasons related to Tastepe's conduct and capabilities. The court held that the incident with the passenger was serious enough to warrant disciplinary action, and Tastepe's response was not in line with the employer's expectations. The court further found that the dismissal was proportionate to the nature of the misconduct and that the procedural fairness of the dismissal process was not deficient. The application for unfair dismissal was dismissed, and no remedy was granted to Tastepe.

The Federal Court did not make any orders in relation to the application, upholding the dismissal as fair and justified under the circumstances.

Feray Tastepe v Alpha Flight Services

DECISION

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Background to the litigation

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Legal Principle Established