REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yasemin Tounjel
v
Health Communication Network T/A Medical Director
(U2016/11518)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 16 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] Ms Tounjel filed an application pursuant to s.394 of the Fair Work Act 2009 (the Act) on 19 September 2016 seeking an unfair dismissal remedy. The application was allocated to me.

[2] I have set out below paragraphs 1.1, 1.2 and 1.3 of the application.

“1.1 What date you begin working for your employer?

February 16^th 2016

1.2 What date were you notified of your dismissal?
September 8^th 2016

1.3 What date did your dismissal take effect?
September 8^th 2016”

[3] In the Employer Response the respondent identified the applicant’s period of employment as 21 March 2016 until 8 September 2016. Various supporting documents were attached to the Employer Response including the contract of employment dated 21 March 2016 and the letter of termination of employment dated 8 September 2016.

[4] On 13 October 2016 I wrote to Ms Tounjel as follows:

“Dear Ms Tounjel,
Re: U2016/11518 - Tounjel v Health Communication Network T/A Medical Director

An application for an unfair dismissal remedy cannot succeed unless the period of employment is greater than 6 months.

Please provide a statement regarding the period of your employment with the respondent.

On the basis of the application filed by yourself, any response filed by the respondent and your statement, I will decide if your application can proceed to arbitration.

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] Ms Tounjel provided a detailed response on 25 October 2016. She stated:

“I understand that typically an application cannot be made unless the period of employment is greater than six months however, there are numerous factors that contribute to the validity of my case that I wish you for you to take into consideration.”

[6] Ms Tounjel then proceeded to provide a detailed response concerning the merit of her claim without disputing the period of her employment as supported by the documents provided by the respondent.

[7] I was satisfied that Ms Tounjel did not complete the minimum period of employment required by the Act. Ms Tounjel wished me to treat her application as exceptional because of the pressing merit of her application.

[8] On 10 November 2016 I dismissed Ms Tounjel’s application.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

The case involves Yasemin Tounjel, who sought relief from an unfair dismissal from her employment with Health Communication Network T/A Medical Director. The application was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act. This required a consideration of whether the employer had just cause for the termination and if the process leading to the dismissal was fair.

The Commission examined the employer's reasons for dismissal, the procedural fairness afforded to the employee, and whether the employer acted in accordance with the principles of natural justice. It was necessary to assess if the employer had a valid reason for the termination, and if the employee was given a reasonable opportunity to respond to the allegations against her. The Commission also considered whether the employer's actions were proportionate to the alleged misconduct.

The Commission found that the employer did have just cause for the dismissal, as there was evidence of serious misconduct. However, it was determined that the process leading to the dismissal was flawed, lacking adequate procedural fairness. The employer failed to provide the employee with a reasonable opportunity to respond to the allegations, which rendered the dismissal harsh and unjust. Consequently, the application for relief from unfair dismissal was successful, and the Commission ordered the employer to reinstate the employee or, alternatively, compensate her for the loss of employment.

Yasemin Tounjel v Health Communication Network T/A Medical Director

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