Unfair Dismissal: Magdalina Kim v Embassy of the People's Democratic Republic of Algeria [2016] FWC 4726

The Embassy of the People’s Democratic Republic of Algeria was order to pay an employee compensation to the amount of $15,506.46, less applicable tax, after the employee’s dismissal was deemed unjust and unreasonable.

Mrs Kim commenced employment with the Embassy of the People’s Democratic Republic of Algeria (the Respondent) as a Housekeeper on a one-year contract in 2005. She signed a contract on 21 February 2005.

In the time leading up to her dismissal, Mrs Kim had been on limited duties due to an arm injury she sustained at work. Additionally, she had been on personal leave from 16 June 2015 and had medical certificates that stated that she was unfit for work until 13 July 2015. Mrs Kim was required to attend a meeting on 30 June 2015 with the Respondent, where her employment was terminated as the one year contract was not going to be “renewed”.

Mrs Kim claimed her dismissal was harsh, unjust or unreasonable because:

  • She efficiently performed her duties and had never been criticised during her employment;
  • She was not employed under a contract for any specific period of time as her employment had continued without disruption until her termination, or alternatively she had been employed on a series of one-year, fixed term contracts and her dismissal took effect midway through her current contract;
  • There was no valid reason for her dismissal;
  • She was not provided an opportunity to respond;
  • It would be difficult to find alternative employment due to her age.

The Respondent did not turn up to the Hearing before the Commission and did not meaningfully defend the application other than to state that Mrs Kim’s employment had been renewed each year and expired on 30 June 2015 and had not been renewed because she would be unable to resume her duties after an absence of one month from 6 June to 6 July 2015.

Decision

The Commission found there was no basis whatsoever for the Respondent’s submission that Mrs Kim’s contract expired on 30 June 2015 as she had continued to work for an extended period of time beyond the expiry of her contact of employment. The Commission found there the termination of Mrs Kim’s dismissal was harsh, unjust and unreasonable as there was no valid reason for her dismissal, was not provided an opportunity to respond to the reasons relied on by the Respondent and because Mrs Kim had an unblemished length of service.

The Commission believed reinstatement was not appropriate as the Respondent allegedly made statements to Mrs Kim, which would likely make it difficult for Mrs Kim to regain trust in the Respondent. Therefore, the Commission ordered the Respondent to pay Mrs Kim compensation of six months pay in the amount of $15,506.46 less applicable tax.

Read the full decision here

 

* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate. 

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