Ms Omur Kose v Kuranya Pty Ltd

[2024] FWC 1923

[2024] FWC 1923

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal (consent arbitration)

Ms Omur Kose
v

Kuranya Pty Ltd

(C2024/4205)

DEPUTY PRESIDENT COLMAN MELBOURNE, 22 JULY 2024

Section 365 – consent arbitration – no contravention – application dismissed

1. Omur Kose has made an application under s 365 of the Fair Work Act 2009 (Act). The respondent is Ms Kose’s former employer, Kurunya Pty Ltd (company). The Fair Work Commission convened a conference between the parties however the matter was not resolved. On 25 June 2024, Commissioner Platt issued a certificate to the effect that he was satisfied that all reasonable efforts to resolve the matter had been unsuccessful. The parties have now agreed for the Commission to determine the dispute by arbitration and to accept my decision.

1. Ms Kose gave evidence that she was employed by the company as the assistant manager of its childcare centre but that she was required to perform many duties that were outside the scope of her contract, including acting as a substitute teacher and a child educator which required her to write thousands of observation notes during the day. She said that she was a ‘one man band’ and did the jobs of 20 people, and even did the cleaning. She had to travel a very long way to work. The job was physically exhausting and adversely affected her mental health. Ms Kose said that she had to work over nine hours a day and that she was not paid overtime. She said that she was bullied, that her managers were demanding, and that there was a hostile working environment. Ms Kose said that she had not been treated fairly during her employment, that the company had exploited her, and that her dismissal was unfair and unjust because there was no good reason for it, and because she was dismissed without notice.

1. Behnaz Nikjeh gave evidence that on 17 April 2024, Ms Kose had opened an email sent to the general company email address. The message was from AMES, the agency that placed Ms Kose with the company. It stated that Ms Kose had told the agency that she was not happy with the company because it had been overworking her, and that she was mentally and physically exhausted. Ms Nikjeh said that Ms Kose had then forwarded the email to herself and also took photographs of the email. This could be seen from the CCTV. Ms Kose did not deny doing these things. Ms Nikjeh said that she had seen the CCTV footage on the evening of 17 April 2024, and that she was worried that Ms Kose might have taken photographs of other material on the computer, which stored client details. On 18 April 2024, she told Ms Kose not to use the computer. On 19 April 2024, she discussed what had occurred with a company director. They decided to dismiss Ms Kose. An email was sent to Ms Kose stating that her employment was terminated because of her misuse of private information and breach of privacy. Ms Nikjeh’s evidence was that the company’s reason for dismissing Ms Kose was that she had photographed information on the computer. She said that it was important for the company to keep the information on the computer safe, and that Ms Kose could no longer be trusted to use the computer, which was necessary for her to do her job. Ms Nikjeh said that it was no part of the reason for dismissal that Ms Kose had complained to AMES about being overworked by the company. Ms Nikjeh said that some months earlier, the company had received a similar message from AMES, and she had raised this with Ms Kose, but Ms Kose had said that she had no complaints.

1. I make the following findings. First, I find that Ms Kose made a complaint to AMES about her workload, and that this was relayed by AMES to the company. I further find that Ms Kose had made a similar complaint some months earlier. However, I accept the evidence of Ms Nikjeh that the reason for Ms Kose’s dismissal was that she had taken photographs of the work computer screen and that she did not trust Ms Kose to use the computer. I also accept Ms Nikjeh’s evidence that the reason for the dismissal was unconnected to the fact that Ms Kose had complained to AMES about her employment. Ms Nikjeh’s evidence about this was credible. Ms Kose had made an earlier complaint to AMES which was relayed to the company and then raised with Ms Kose by Ms Nikjeh. This had had no adverse consequence for Ms Kose. I note that, in her response to AMES on 17 April 2024, Ms Nikjeh stated that she was frustrated with Ms Kose’s ‘approach’ and that she found it unprofessional for her to complain ‘behind her back’. But this was not the reason or a partial reason for the dismissal. It was Ms Kose’s conduct on 17 April 2024 that was the reason for the company’s decision to dismiss her, not the fact that she had made any complaint.

1. In my opinion, the company’s response to Ms Kose’s conduct on 17 April 2024 was an overreaction. It was also harsh to dismiss Ms Kose without notice. But these matters are not relevant to an application under s 365. The question for the Commission to determine is whether Ms Kose was dismissed in contravention of Part 3-1 of the Act. The answer is ‘no’. In particular, Ms Kose was not dismissed wholly or partly because Ms Kose had a workplace right, or exercised such a right (see s 340), or for any other proscribed reason. She was dismissed for the reasons given by the company. The evidence does not establish any other contravention of a provision of Part 3.1. In fact, Ms Kose made no specific allegation that the reason for her dismissal was an unlawful one or otherwise contravened the general protections provisions in the Act. She appears to have understood the application as one that enabled her to challenge the fairness or reasonableness of the company both in relation to its treatment of her during the course of her employment and its decision to dismiss her. But this is not the case. The dismissal of Ms Kose was not in contravention of Part 3-1 of the Act. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

O. Kose for herself
B. Nikjeh and R. Jarah for the company.

Hearing details:

2024
Melbourne
19 July

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