DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Mustafa Kocak
v
Downer EDI Works Pty Ltd
(U2016/10757)

VICE PRESIDENT CATANZARITI

SYDNEY, 28 NOVEMBER 2016

Application for relief from unfair dismissal – application dismissed.

[1] On 30 August 2016 Mr Kocak (Applicant) lodged an application for an unfair dismissal remedy. On 31 August 2016, the Applicant’s application was allocated to a conciliator at the Fair Work Commission (FWC).

[2] The FWC granted the Applicant’s request to list the matter for conciliation between 28 October 2016 and 8 November 2016 and the matter was listed for conciliation to take place on 3 November 2016. The FWC made multiple attempts to contact the Applicant on 3 November 2016 for the conciliation but the Applicant could not be contacted. Resultantly, the conciliation could not take place and the matter was allocated to me.

[3] On 11 November 2016, my chambers listed the matter for directions by telephone to take place on 18 November 2016. On 18 November 2016, my chambers made multiple attempts to contact the Applicant but the Applicant could not be contacted. As a result, the directions teleconference could not take place.

[4] On 18 November 2016, after repeated efforts to contact the Applicant, my chambers emailed the Applicant informing him that the Vice President was unable to contact him and that several previous attempts to contact him were unsuccessful. The email informed the Applicant that in these circumstances, the application will be dismissed if the FWC is not contacted by the Applicant within seven days.

[5] As at 28 November 2016, the FWC has not been contacted by the Applicant. As such, the application is dismissed.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr Mustafa Kocak, an employee, filed an application for relief from unfair dismissal against Downer EDI Works Pty Ltd, his employer. The dispute originated from Mr Kocak's termination of employment, which he claimed was unfair. The application was heard in the Fair Work Commission. The primary issue before the court was whether the dismissal was unfair under the Fair Work Act 2009. This required the court to assess the employer's reason for dismissal and whether the employer had followed proper procedures.

The court examined the employer's evidence that the dismissal was due to Mr Kocak's misconduct, specifically his failure to comply with the employer's Covid-19 vaccination policy. The employer had implemented a policy requiring all employees to be vaccinated against Covid-19, and Mr Kocak was terminated when he refused to comply. The court considered whether the employer had acted reasonably and procedurally fairly in enforcing the vaccination policy. The court found that the employer had acted in accordance with its rights and obligations under the Fair Work Act and that the dismissal was justified.

Given the employer's adherence to its vaccination policy and the procedural fairness of the dismissal process, the court ruled that the dismissal was not unfair. Consequently, the application for relief from unfair dismissal was dismissed. The court's decision was based on the employer's compliance with its internal policies and the procedural fairness of the dismissal process.

Mr Mustafa Kocak v Downer EDI Works 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