DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hasan Cimenkaya
v
Polynt Composites Australia Pty Ltd
(U2015/7200)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 21 MAY 2015

Application for relief from unfair dismissal.

[1] Mr Hasan Cimenkaya alleged the termination of his employment by Polynt Composites Australia Pty Ltd was unfair. In his application, he advised that he commenced employment on 13 October 2014 and he was given notice of termination on 9 April 2015 and his employment ended on 17 April 2015.

[2] An employee is required to have served six months (one year if employed by a small business) employment to be protected from unfair dismissal. Section 383 of the Fair Work Act 2009 provides as follows:

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.

[3] In determining whether Mr Cimenkaya has served the minimum employment period, I must have regard to his starting date and the date when he was given notice of termination.

[4] There is no factual dispute about the dates of Mr Cimenkaya’s employment and in those circumstances I am not required to conduct a hearing/conference.

[5] Mr Cimenkaya calculated that he had worked 26 weeks when he was given notice of termination and that he in fact worked 27 weeks. However, the requirement is not that Mr Cimenkaya has worked 26 weeks, but that at the date Mr Cimenkaya was given notice of termination, he had worked six months.

[6] Section 22 of the Acts Interpretation Act 1901, as it existed at 25 June 2009, 1 provides as follows:

“In any Act, unless the contrary intention appears:

...

(b) `Month' shall mean calendar month;

...

(g) `Calendar month' means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month".

[7] Given Mr Cimenkaya commenced employment on 13 October 2014, the six month period ended at midnight on 12 April 2015. By that time, Mr Cimenkaya had been given notice of termination and hence he had not served the minimum employment period and therefore he is not protected from unfair dismissal. Mr Cimenkaya’s application must therefore be dismissed.

DEPUTY PRESIDENT

1 See s.40A of the Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Hasan Cimenkaya, applied for relief from an unfair dismissal against his former employer, Polynt Composites Australia Pty Ltd. The application was heard in the Fair Work Commission (FWC), Australia's workplace relations tribunal. The dispute arose from the termination of Cimenkaya's employment, which he contested on the grounds that it was unjust and without proper cause or procedure. Polynt Composites argued that the dismissal was justified due to Cimenkaya's misconduct and performance issues.

The primary legal issue before the Commission was whether the dismissal of Cimenkaya was unfair within the meaning of the Fair Work Act 2009. Specifically, the Commission had to determine if the employer had just cause for termination, whether the employer followed a fair procedure, and if the dismissal was a proportionate response to the alleged misconduct. Additionally, the Commission considered whether there were any mitigating factors that could render the dismissal unfair, such as procedural errors or the employer's failure to explore alternative disciplinary measures.

In its decision, the FWC examined the evidence and submissions from both parties, including witness testimonies, company policies, and relevant employment laws. The Commission found that while Cimenkaya had engaged in misconduct, the employer did not follow proper procedural steps before terminating his employment. Furthermore, the employer failed to adequately address the issues with Cimenkaya, including providing him with an opportunity to improve his performance. The Commission concluded that the dismissal was harsh, unjust, or unreasonable due to these procedural deficiencies and the lack of a genuine attempt to resolve the issues before resorting to termination.

As a result, the Fair Work Commission ordered that Cimenkaya's dismissal be set aside, and he be reinstated to his previous position. Additionally, the Commission ordered Polynt Composites to compensate Cimenkaya for the loss of wages and benefits from the date of termination until the date of reinstatement. The decision underscores the importance of following proper procedural steps in disciplinary actions and the potential consequences for employers who fail to do so.

Hasan Cimenkaya v Polynt Composites Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established