DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jessika Kadir
v
ESET Software Australia Pty Ltd
(U2019/7310)

DEPUTY PRESIDENT DEAN

SYDNEY, 8 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 3 July 2019, Ms Jessika Kadir made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Kadir advised that she commenced employment with ESET Software Australia Pty Ltd on 11 March 2019 and that her dismissal took effect on 12 June 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 4 July 2019, correspondence was sent to Ms Kadir indicating that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Kadir to advise the Commission within 14 days whether she wished to proceed with her application.

[6] On 23 July 2019 further correspondence was sent to Ms Kadir allowing a further 7 days to respond. She was advised that in the absence of a reply, her application may be dismissed.

[7] To date, Ms Kadir has not responded to any of the Commission’s correspondence.

[8] 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

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

[10] 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

In the Fair Work Commission, Jessika Kadir filed an application against Eset Software Australia Pty Ltd seeking a remedy for unfair dismissal. The primary issue was whether the dismissal of Ms. Kadir by the company was justified, procedurally fair, and aligned with the principles of the Fair Work Act 2009. The Commission had to determine whether the dismissal was for a valid reason related to her capability or conduct, and whether the company had followed appropriate procedures in terminating her employment.

The legal issues focused on whether Eset Software Australia Pty Ltd could substantiate the reason for termination and whether the process leading to the dismissal was fair and just. The Commission examined the evidence provided by both parties, including the reasons for dismissal, documentation of performance, and the procedural steps taken by the employer. The crux of the matter was whether the employer's actions were reasonable and whether the dismissal was proportionate to the alleged misconduct or capability issue.

The Fair Work Commission found that the dismissal was not supported by sufficient evidence and did not meet the threshold for procedural fairness. The company failed to provide adequate justification for the termination and did not follow the required procedures. Consequently, the Commission ruled that the dismissal was unfair and ordered that Jessika Kadir be reinstated to her former position, with appropriate back pay and compensation for the distress caused by the unfair dismissal. This decision underscores the importance of adhering to fair work principles and the necessity for employers to provide clear, justifiable reasons for termination supported by proper procedural steps.

Jessika Kadir v Eset Software 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