Ramazan Ozdamar v MSS Security Pty Limited - [2023] FWC 2237

[2023] FWC 2237

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Ramazan Ozdamar
v

MSS SECURITY PTY LIMITED

(C2023/3934)

COMMISSIONER YILMAZ

MELBOURNE, 16 NOVEMBER 2023

Application to deal with contraventions involving dismissal– jurisdictional objection - whether Applicant dismissed – no dismissal - resignation.

On 4 July 2023, Mr Ramazan Ozdamar lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against MSS Security Pty Limited (the Respondent). In his application, Mr Ozdamar alleges that he was forced to resign because he exercised a workplace right.[1]

The Respondent objects to the application stating that Mr Ozdamar voluntarily resigned.[2] Further, it denies that there has been any breach of the general protection provisions under the Act in respect to Mr Ozdamar’s employment.

Mr Ozdamar submits he was employed as a part-time Aviation Protection Officer with the Respondent since 14 November 2017. He states that he was forced to resign and tendered his resignation on 18 June 2023 with two weeks’ notice. Mr Ozdamar submits that his resignation was because of the actions of the employer starting in February 2023[3] which included an investigation into his behaviour, allegedly based on false accusations[4] and for being prevented from working overtime shifts in the international terminal[5] which he asserts ‘affected [his] productivity, work performance, overall efficiency and as a result [he] was forced to use [his] sick leaves.’[6]

The matter in dispute is whether Mr Ozdamar resigned voluntarily or was forced to resign. A person may make a section 365 general protections involving dismissal application where that person was an employee, who was dismissed from employment and they allege that the dismissal is a contravention of the general protections provisions. Whether Mr Ozdamar’s termination of employment with the Respondent is a “dismissal” within the meaning of the Act is in dispute.

Mr Ozdamar gave oral evidence on his own behalf and was his sole witness. For the Respondent, the following witnesses gave evidence:

Mr George Tselios, Aviation Services Manager
Mr Jamie Adams, Client Delivery Manager Victoria

Both parties were self-represented.

Was the Applicant Dismissed?

It is not contested that Mr Ozdamar tendered his written resignation on 18 June 2023 with two weeks’ notice. The employment came to an end on 2 July 2023 at the conclusion of the notice period. However, Mr Ozdamar contends that he had no choice but to resign, he submits that he was forced to do so because of the Respondent’s actions. The conduct that he alleges that led to his resignation concerns a series of events which commenced with an alleged “false allegation”[7] against him followed by his actions to “clear [his] name.”[8] He further submits that he was treated “inferior” to others[9], experienced a drop in wages[10] and received warnings. He describes the workplace right as his effort to clear his name. This “right” is described as seeking his rights to a fair and open investigation to clear his name.[11]

While Mr Ozdamar does not contend that he was dismissed directly by his…

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 2237
Decision Date: 16 NOVEMBER 2023

CaseChat Overview and Summary

Ramazan Ozdamar applied to the Fair Work Commission for a determination that his dismissal by MSS Security Pty Limited was unlawful. Ozdamar alleged that he was forced to resign by the Respondent. The matter was heard on 4 September 2023. The Commissioner found that Ozdamar was not dismissed as defined by the Fair Work Act 2009. The Commissioner found that Ozdamar was not forced to resign by the conduct of the Respondent. Ozdamar resigned on his own initiative, dissatisfied with the outcome of his grievances and due to the possibility of a dismissal by the employer if he continued his conduct for which he was warned. The application for general protections involving dismissal was dismissed. An order to that effect will be issued with this decision.

Orders