Feride Dilan Alca v Kore Support Group Pty Ltd - [2025] FWC 322

[2025] FWC 322

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Unfair dismissal

Feride Dilan Alca
v

Kore Support Group Pty Ltd

(U2024/11985)

COMMISSIONER YILMAZ

MELBOURNE, 5 FEBRUARY 2025

Application for relief from unfair dismissal – whether the Applicant was dismissed – Applicant was an employee and dismissed – dismissal was harsh, unjust or unreasonable – compensation ordered

On 8 October 2024, Ms Feride Dilan Alca (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Kore Support Group Pty Ltd (the Respondent). In its Form F3, the Respondent raised a jurisdictional objection that the Applicant was not dismissed because she worked under her own ABN (the objection). This decision deals with the objection, the merit of the application and remedy.

Ms Alca submits that she commenced employment with the Respondent as a support worker on 20 September 2023 and dismissed on 24 September 2024. Kore Support Group is an NDIS provider. Ms Alca filed and served her outline of argument, statement of evidence and supporting evidence as required by the directions issued to the parties on 4 December 2024. The Respondent did not attend the directions hearing nor did it file or serve any documentation in support of the jurisdictional objection or in response to the merits of the application. Consequently, this decision is based on the Applicant’s evidence before the Commission.

At the hearing on 13 January 2025, the Applicant was self-represented and gave sworn evidence.

The Respondent did not attend the hearing. However, on Friday 10 January after 5pm a call was received from Dr Celik to the Commission, advising that she was unwell and unsure what information was to be submitted. She was informed to contact my chambers directly via email. On the same evening at 9.06pm an email was received advising that due to ill health she would not attend on Monday and offered to provide a letter from the hospital. Minutes later a two-page document was attached to an email which appeared to respond to the dissemination of the digital hearing book on 8 January 2024. This two-page document consisting of dot points repeats the information contained in the Form F3 with some additional information, but none of the information assisted with the jurisdictional objection.

On the morning of 13 January 2025, my Chambers informed the Respondent that the hearing would proceed as scheduled and requested the letter from the hospital. On Friday 17 January at 7.31pm the Respondent sent through two medical certificates which confirm a medical appointment in the hospital on 9 January 2025. No additional material or information was provided. Both certificates are dated 10 January but the first advises that Zara Celik is unfit for work 9–10 January, and the second medical certificate states that she is unfit for work 10–13 January 2025. Neither of the medical certificates explain the absence of…

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.

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Details

Case: [2025] FWC 322
Decision Date: 5 FEBRUARY 2025

CaseChat Overview and Summary

Feride Dilan Alca applied to the Fair Work Commission under section 394 of the Fair Work Act 2009 for a remedy, alleging she was unfairly dismissed from her employment with Kore Support Group Pty Ltd. The Respondent raised a jurisdictional objection that the Applicant was not dismissed because she worked under her own ABN. Commissioner Yilmaz dismissed the objection, finding that the Applicant was an employee and was dismissed, thus the Commission had jurisdiction to hear the matter. The Applicant was employed as a support worker for Kore Support Group, an NDIS provider, from 20 September 2023 until she was dismissed on 24 September 2024. The dismissal was allegedly due to a breach of privacy and professional conduct, as communicated via a text message. The Applicant denied any wrongdoing and argued the dismissal was unfair.

The Commissioner found that the Applicant was indeed an employee, not an independent contractor, based on the payslips and bank statements provided. The absence of a written contract did not negate the employment relationship. The dismissal was found to be harsh, unjust, or unreasonable as it lacked a valid reason, procedural fairness, and an opportunity for the Applicant to respond. The text message served as the sole communication of the dismissal and did not provide any details about the alleged misconduct.

In determining the appropriate remedy, the Commissioner considered various factors, including the length of service, potential earnings, and efforts to mitigate loss. The Applicant was awarded compensation of 9 weeks’ pay, amounting to $9840.06 gross, to be taxed according to law. The Respondent was ordered to pay this amount within 14 days of the decision, along with the applicable superannuation.

Orders