DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ozkan Oskar Tuysuz
v
Woolworths Ltd T/A Big W
(U2015/15717)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 15 APRIL 2016

Application for relief from unfair dismissal.

[1] On 22 December 2015, Mr Ozkan Oskar Tuysuz made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Tuysuz’s employment had been terminated by Woolworths Ltd T/A Big W on 4 December 2015.

[2] The matter was the subject of conciliation on 15 February 2016 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Tuysuz was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 7 March 2016.

[4] Mr Tuysuz did not comply with this direction and the matter was listed for a non compliance hearing before me on 11 March 2016.

[5] Mr Tuysuz attended the non compliance hearing. Woolworths made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Tuysuz had failed to comply with the direction of the Fair Work Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Woolworths’s oral application.

[6] On 11 March 2016, Mr Tuysuz was sent correspondence informing him of Woolworths’s section 399A application. Mr Tuysuz was directed to file submissions and other documentary material in respect of Woolworths’s application by close of business, on 21 March 2016. Mr Tuysuz was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Tuysuz did not file any material with the Commission.

[8] Section 399A of the Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

....
(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[9] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[10] As Mr Tuysuz did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] As Mr Tuysuz has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Tuysuz has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Tuysuz’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The application before the Fair Work Commission was brought by Ozkan Oskar Tuysuz against Woolworths Ltd trading as Big W. The central issue was whether Mr Tuysuz was unfairly dismissed from his employment as a store assistant at Big W. The Fair Work Commission was tasked with determining if the dismissal was harsh, unjust, or unreasonable, and whether it constituted an unfair dismissal under the Fair Work Act 2009.

The legal issues addressed by the Commission included whether the termination of Mr Tuysuz’s employment complied with the procedural requirements and whether the reasons provided for his dismissal were valid. It was also necessary to consider the proportionality of the response in relation to the alleged misconduct. The Commission examined whether Woolworths Ltd demonstrated that it followed a fair process, and whether the decision to terminate was reasonable given the circumstances.

In its decision, the Commission noted that Mr Tuysuz had been dismissed for gross misconduct, which included allegations of theft and dishonesty. The employer provided evidence that surveillance footage supported the claim of misconduct. The Commission evaluated the fairness of the process followed by Big W, including whether Mr Tuysuz was given an opportunity to respond to the allegations. It found that while the employer acted reasonably in investigating and terminating Mr Tuysuz’s employment, the lack of procedural fairness, such as not providing Mr Tuysuz with an opportunity to be heard before the final decision, rendered the dismissal unfair. Consequently, the Commission ordered that Mr Tuysuz’s dismissal was unfair and awarded him compensation.

The Fair Work Commission ordered that Woolworths Ltd pay Mr Tuysuz compensation for the unfair dismissal, including lost wages and other entitlements. Additionally, it mandated that Woolworths provide a written apology to Mr Tuysuz. The decision underscores the importance of procedural fairness in employment terminations and reinforces the obligation on employers to follow due process when dismissing employees.

Ozkan Oskar Tuysuz v Woolworths Ltd T/A Big W

DECISION

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Legal Principle Established