Tarcan Kefeli v UPS Supply Chain Solutions Summary

[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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by Tarcan Kefeli against UPS Supply Chain Solutions, concerning an alleged unlawful termination of employment. Mr Kefeli applied to the Commission under section 773 of the Fair Work Act 2009, seeking to have his dismissal reviewed. The Commission notified Mr Kefeli that, due to the nature of his employer, he might be required to lodge a general protections application instead. The Commission attempted to contact Mr Kefeli multiple times to clarify the appropriate application, but he did not respond, leading to the current proceedings.

The primary legal issue was whether Mr Kefeli's application complied with the requirements of the Fair Work Act. Specifically, the court needed to determine if Mr Kefeli was eligible to lodge an unlawful termination application or if he should have made a general protections application. Additionally, the court examined if the application was frivolous or vexatious, or if it had a reasonable prospect of success. Given that Mr Kefeli did not respond to attempts for clarification, the court had to decide if it should exercise its discretion to dismiss the application under section 587(1)(a) of the Act.

The Fair Work Commission concluded that Mr Kefeli's application did not comply with section 723 of the Fair Work Act, which stipulates that a person entitled to make a general protections application must not make an unlawful termination application. The Commission noted that Mr Kefeli had not responded to their attempts to contact him for clarification and therefore dismissed the application. The Deputy President found that dismissing the application was appropriate under section 587(1)(a) of the Act, as the application was not made in accordance with the Act and had no reasonable prospect of success.

The Fair Work Commission issued an order dismissing Mr Kefeli's application. The Deputy President highlighted the importance of adhering to the correct application process and emphasized the need for applicants to respond to communications from the Commission. This decision underscores the necessity for applicants to be aware of the specific requirements and timelines associated with different types of employment applications under the Fair Work Act.

Tarcan Kefeli v UPS Supply Chain Solutions

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established