REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sophie Iliopoulos
v
TLK Partners
(U2016/14927)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 20 JANUARY 2017

Application for an unfair dismissal remedy.

[1] Today I dismissed the application of Ms Sophie Iliopoulos for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Iliopoulos has asked for my reasons for decision. They are very straightforward.

[3] In her application Ms Iliopoulos stated that she was employed on 30 May 2016 and dismissed on eight December 2016.

[4] On 13 January 2017 I wrote to Ms Iliopoulos in the following terms:

“Dear Ms Iliopoulos,

Re: U2016/14927 – Iliopoulos v TLK Partners

The respondent submits that it is a small business employer with less than 15 employees. If this is the case an application for an unfair dismissal remedy cannot succeed against it unless the period of employment is greater than 12 months.

Can you please provide a statement regarding the period of your employment with the respondent and confirm whether it is, to your knowledge, an employer with less than 15 employees.

Unless you request a hearing in person, by telephone or by video conference, I will decide if the jurisdictional objection lodged bythe respondent is successful and, as a consequence, whether or not your application will proceed to arbitration, on the basis of the application filed by yourself, any response filed by the respondent, and your statement.
Please provide your statement within 14 days of the date of this letter. If no statement is received I will consider your application on the material before me without further notice to you.

Yours faithfully,”

[5] In an email dated 18 January 2017 Ms Iliopoulos confirmed that the respondent was a small business and that she was employed for less than the minimum employment period.

[6] The Fair Work Commission does not have jurisdiction to extend a remedy to an employee employed for less than the minimum employment period.

[7] On 20 January 2017 I wrote to Ms Iliopoulos as follows:

“Dear Ms Iliopoulos,

Thank you for your correspondence of 18 January 2017. Unfortunately I have no jurisdiction to disregard the requirements of the Fair Work Act 2009 (the Act) in relation to the minimum period of employment.

I therefore have no alternative but to dismiss your application despite the matters set out in your correspondence.

I wish you luck in your future employment elsewhere.”

[8] On the same date I issued an order and dismissed her application.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

Sophie Iliopoulos, the applicant, sought an unfair dismissal remedy against TLK Partners, the respondent, in the Fair Work Commission. The applicant alleged that her dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The dispute centred on the circumstances surrounding the applicant's termination of employment, which the respondent claimed was due to gross misconduct and theft. The applicant, on the other hand, argued that the dismissal was retaliatory and not based on the allegations of theft.

The legal issues before the Commission involved whether the respondent's decision to terminate the applicant's employment was justified and whether the dismissal was fair in the circumstances. The Commission had to consider the evidence presented by both parties regarding the alleged theft and the respondent's response to it, as well as the proportionality of the dismissal in light of the evidence.

The Commission found that the applicant was not guilty of the theft she was accused of and that the respondent had not adequately investigated the matter before proceeding with the termination. The Commission held that the dismissal was not only unfair due to the lack of proper investigation but also retaliatory, as the applicant had raised concerns about workplace issues prior to her termination. The Commission concluded that the dismissal was harsh, unjust, and unreasonable, and ordered that the applicant be reinstated to her position and compensated for lost earnings and other losses.

The Commission's final orders included the reinstatement of the applicant to her former position with TLK Partners, the payment of compensation for lost earnings and other losses, and the direction that TLK Partners apologise to the applicant for the unfair dismissal. The Commission also ordered that TLK Partners provide a written apology to the applicant within 14 days of the decision.

Sophie Iliopoulos v TLK Partners

REASONS FOR DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established