Ms Ebal Berre Kuloglu v Hey Mr. Pty Ltd - [2023] FWC 2577

[2023] FWC 2577

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Ebal Berre Kuloglu
v

Hey Mr. Pty Ltd

(C2023/2985)

COMMISSIONER DURHAM

BRISBANE, 5 OCTOBER 2023

Application to deal with contraventions involving dismissal – jurisdictional objection – whether employee dismissed – change in employment type from permanent to casual – jurisdictional objection dismissed

On 24 May 2023 Ebal Berre Kuloglu (Ms Kuloglu/the Applicant) made a general protections application to the Commission under section 365 of the Fair Work Act 2009 (the Act) alleging contraventions of the Act.

Ms Kuloglu alleges that she was dismissed by Hey Mr. Pty Ltd (the Respondent/Mr Seo) on 8 May 2023 in contravention of her workplace rights.

The Respondent opposed the application, by way of raising a jurisdictional objection that the Respondent did not dismiss Ms Kuloglu.

The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the Act before the Commission can exercise powers conferred by section 368.[1] It is therefore necessary to determine the jurisdictional issue raised by the Respondent before Ms Kuloglu’s application can proceed.

I issued directions on 30 June 2023, which were subsequently amended on 20 July 2023 to provide more time to the parties to file their material.

The question of whether Ms Kuloglu was dismissed was dealt with at a Determinative Conference on 14 September 2023. Materials in support were filed by both Ms Kuloglu and the Respondent, with Mr Jung Hua Seo appearing on behalf of the Respondent. Additionally, Mr Vaughn Eric Kruger and Mr Osman Aydogan attended the Determinative Conference to provide oral evidence. It is noted that, though Ms Kuloglu has limited English language skills, she was happy to proceed without an interpreter and Mr Kruger was called upon as needed to assist. The material provided can be summarised as follows.

Evidence of the Respondent

Mr Seo’s evidence can be summarised as follows:

Mr Seo maintains that he did not dismiss Ms Kuloglu, rather he simply changed her position from part-time to casual.
Mr Seo argues that because he had formed the view that Ms Kuloglu was not available to work, he was left with no choice other than to advertise for a new kitchen hand.
In order to do this, he says that he needed to “move” Ms Kuloglu to a casual position so that he could find a replacement and offer the hours to them.[2]

Evidence of the Applicant

Ms Kuloglu’s evidence can be summarised as follows:

Ms Kuloglu began experiencing pain in her back and hands in March 2023.
After raising this with Mr Seo, and seeking time off in order to attend medical appointments and rest, the relationship between her and Mr Seo changed.
During her employment with Mr Seo, Ms Kuloglu accessed a total of two sick…

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: [2023] FWC 2577
Decision Date: 5 OCTOBER 2023

CaseChat Overview and Summary

In the Fair Work Commission, Ms Ebal Berre Kuloglu lodged a general protections application against Hey Mr. Pty Ltd (trading as Hey Mr.) pursuant to section 365 of the Fair Work Act 2009. Ms Kuloglu alleged she was dismissed by Hey Mr. on 8 May 2023 in contravention of her workplace rights. Hey Mr. opposed the application on the basis of a jurisdictional objection, contending that Ms Kuloglu was not dismissed but merely had her employment status changed from permanent to casual. The court was required to determine whether Ms Kuloglu was dismissed within the meaning of the Fair Work Act 2009. The court examined the evidence and submissions from both parties, and considered the legal principles regarding dismissal and the difference between permanent and casual employment. The Commission found that Hey Mr.'s actions, including advising Ms Kuloglu to look for another job, advertising her position while she was still employed, assigning shifts to "new kitchen hand" while she was still employed, and changing her position to casual without further contact, demonstrated an intention to terminate her employment. The Commission concluded that Ms Kuloglu was dismissed within the meaning of the Act, and the jurisdictional objection was dismissed.

The Fair Work Commission found that Ms Kuloglu was dismissed by Hey Mr. Pty Ltd on 8 May 2023, in contravention of her workplace rights. The court determined that Hey Mr.'s actions, including advising Ms Kuloglu to look for another job, advertising her position while she was still employed, assigning shifts to "new kitchen hand" while she was still employed, and changing her position to casual without further contact, demonstrated an intention to terminate her employment. The Commission concluded that Ms Kuloglu was dismissed within the meaning of the Fair Work Act 2009, and the jurisdictional objection was dismissed. The court found that the Commission had jurisdiction to convene a conciliation conference to explore the resolution of the matter.

Orders