Tarcan Kefeli v UPS Supply Chain Solutions
[2023] FWC 3320
•13 DECEMBER 2023
| [2023] FWC 3320 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.773—Termination of employment
Tarcan Kefeli
v
UPS Supply Chain Solutions
(C2023/7439)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 13 DECEMBER 2023 |
Application to deal with an unlawful termination dispute – national system employer – dismissal under s.587 at the Commission’s initiative.
On 30 November 2023, Mr Tarcan Kefeli made an application to deal with an unlawful termination dispute to the Fair Work Commission pursuant to s.773 of the Fair Work Act 2009 (FW Act).
On 1 December 2023, the Commission emailed correspondence to Mr Kefeli’s nominated email address advising him that he may not be eligible to make his application because UPS Supply Chain Solutions (the Respondent) may be a national system employer and this would mean that he could make a general protections application. The correspondence included information on the different types of applications that deal with dismissal and further stated:
“If you can make a general protections application, then you can’t make an unlawful termination application.
There are strict time limits. You need to decide which application you want to make as soon as you can.”
On the same day, the Commission attempted to contact Mr Kefeli on his nominated telephone number, however, Mr Kefeli did not answer the call. There was no facility to leave a voicemail message, however an SMS text notification was sent requesting Mr Kefeli call the Commission back regarding his matter. On 8 December 2023, the Commission made a final attempt to contact Mr Kefeli on his nominated telephone number, however Mr Kefeli did not answer the call. To date, Mr Kefeli has not made further contact with the Commission.
Pursuant to s.723 of the FW Act, a person entitled to make a general protections application must not make an unlawful termination application. Section 587(1) of the FW Act provides as follows:
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
(c) the application has no reasonable prospect of success.
(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
In the circumstances, I am satisfied that Mr Kefeli lodged an unlawful termination application when he was entitled to make a general protections application and accordingly, the application has not been made in accordance with s.723 of the FW Act. Having regard to this and the lack of a response from Mr Kefeli to the Commission’s attempts to contact him, I am persuaded that I should exercise my discretion and dismiss the application pursuant to s.587(1)(a) of the FW Act. An Order[1] to this effect will be issued with this decision.
DEPUTY PRESIDENT
[1] PR769334.
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