DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nuriban Dinc
v
Cafe sapore T/A Cafe sapore
(U2019/2762)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 21 MAY 2019

Application for an unfair dismissal remedy.

[1] On 13 March 2019, Miss Nuriban Dinc made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Miss Dinc advised that she commenced employment with Cafe sapore T/A Cafe sapore on 7 December 2018 and that she was notified of her dismissal on 8 March 2019, with the dismissal taking effect the following day on 9 March 2019.

[3] On the same day as the lodgment of Miss Dinc’s application, the Commission attempted to telephone her to discuss the minimum employment period required under the Act. This was unsuccessful and a voicemail message was left seeking her return call. Following this, email correspondence was sent to Miss Dinc’s nominated email address which confirmed that her Form F2 indicated she had not been employed for the minimum employment period required under the Act, and further directed Miss Dinc to file in the Commission within 14 days any documents or evidence to support her claim of having served the minimum employment period. It was noted that if no response was received, Miss Dinc’s application may be dismissed without further notice.

[4] On 8 April 2019, final correspondence was sent to Miss Dinc’s nominated email address which noted that the Commission had not received any material from her and warning that if she did not provide an acceptable explanation as to why she did not respond to the direction contained in the correspondence of 13 March 2019 within seven days, her application would be determined on the material currently before the Commission.

[5] On each day of 17 and 21 May 2019, the Commission attempted to telephone Miss Dinc. Both attempts were unsuccessful and no voicemail message was able to be left.

[6] To date, the Commission has not received any documentation or correspondence from Miss Dinc.

[7] 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.

[8] 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.”

[9] 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

[10] Having regard to the circumstances of this matter, I am satisfied that as Miss Dinc has not completed the required minimum employment period, her application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Nuriban Dinc, sought a remedy for unfair dismissal against her former employer, Cafe sapore T/A Cafe sapore, in the Fair Work Commission. Dinc had worked as a waitress for Cafe sapore since 2019. She alleged that she was dismissed without just cause or reason, contrary to the provisions of the Fair Work Act 2009. Cafe sapore argued that the dismissal was justified on the grounds of poor performance and misconduct. The central issue before the Commission was whether Dinc's dismissal was harsh, unjust, or unreasonable, and if so, whether it was an unfair dismissal warranting remedy.

The Commission examined the circumstances surrounding Dinc's termination, including her performance history, the reasons provided by Cafe sapore for the dismissal, and any procedural fairness observed. It considered whether the employer had followed a fair process in making the decision to dismiss, including providing Dinc with an opportunity to respond to the allegations against her. The Commission also assessed whether the dismissal was a proportionate response to the alleged misconduct. After reviewing the evidence and submissions from both parties, the Commission determined that Dinc's dismissal was unfair. It found that Cafe sapore failed to adequately address the allegations of misconduct and did not follow a fair process in reaching its decision.

Accordingly, the Commission ordered that Cafe sapore reinstate Dinc to her former position and compensate her for lost wages and entitlements from the date of dismissal until the date of reinstatement. Additionally, the Commission directed Cafe sapore to pay Dinc's legal costs associated with the application.

Nuriban Dinc v Cafe sapore T/A Cafe sapore

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established