DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anh Thanh Nguyen
v
Couriers Please Pty Ltd T/A Couriers Please
(U2015/4598)

COMMISSIONER WILSON

MELBOURNE, 10 AUGUST 2015

Application for relief from unfair dismissal.

[1] On 2 April 2015, Mr Anh Thanh Nguyen made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Nguyen’s application form stipulated that the termination of his employment by Couriers Please Pty Ltd took effect on 13 March 2015.

[2] The matter was the subject of conciliation however, the matter was ultimately not resolved. Consequently, directions were issued and the matter was listed for a jurisdictional hearing.

[3] Mr Nguyen was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 13 July 2015.

[4] Mr Nguyen did not comply with this direction.

[5] On 14 July 2015, Couriers Please Pty Ltd filed an objection to the application and sought the dismissal of Mr Nguyen’s application. Couriers Please Pty Ltd based their objection on grounds which include failure to comply with a direction.

[6] On 16 July 2015, Mr Nguyen was sent correspondence informing him of Couriers Please Pty Ltd’s section 399A application. Mr Nguyen was directed to file submissions and other documentary material in respect of Couriers Please Pty Ltd’s application by close of business, on 24 July 2015. Mr Nguyen was advised that if he failed to comply with this direction, his application would be dismissed.

[7] Mr Nguyen did not file any material with the Commission.

[8] Section 399A of the Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

....
(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[9] I am satisfied that Couriers Please Pty Ltd’s objection filed on 14 July 2015 is an application to have the matter dismissed for Mr Nguyen’s failure to comply with a direction.

[10] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[11] As Mr Nguyen did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[12] After considering all the material, Mr Nguyen’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Anh Thanh Nguyen v Couriers Please Pty Ltd T/A Couriers Please, the Fair Work Commission was tasked with reviewing the dismissal of Anh Thanh Nguyen, the applicant, by the respondent, Couriers Please, and determining whether the dismissal was unfair. Nguyen, an employee of Couriers Please, was dismissed on grounds of misconduct. Nguyen's employment was terminated following an investigation into allegations of improper conduct involving the misuse of company property. Nguyen was found to have failed to adhere to the company's policies regarding the use of its vehicles, which led to his dismissal. Nguyen sought relief from the dismissal, arguing it was unfair and seeking reinstatement or compensation.

The legal issues before the Commission were whether the dismissal was procedurally fair, substantively fair, and whether there were any mitigating circumstances that should be considered. The Commission examined the fairness of the investigation process, the adequacy of the evidence against Nguyen, and the proportionality of the dismissal. Additionally, the Commission considered whether there were any mitigating factors that could influence the fairness of the dismissal, such as Nguyen's conduct prior to the incident or any personal circumstances that might have impacted his actions.

The Commission found that the investigation process was generally fair, as it provided Nguyen with an opportunity to respond to the allegations and present his case. However, the Commission noted that there were some procedural deficiencies in the investigation, such as the lack of a formal written notice of the allegations prior to the investigation. Despite these deficiencies, the Commission concluded that the overall fairness of the process was not significantly compromised. Regarding the evidence, the Commission found that it was sufficient to justify the misconduct finding. The conduct in question was serious, and the evidence supported the conclusion that Nguyen had misused company property. The Commission also considered mitigating factors, such as Nguyen's otherwise good employment record and his expressions of remorse, but ultimately determined that they did not outweigh the seriousness of the misconduct.

The Fair Work Commission decided that the dismissal was fair, taking into account the seriousness of the misconduct, the adequacy of the investigation, and the evidence presented. The Commission found that while the investigation had some procedural shortcomings, they did not render the process unfair. The evidence of misconduct was clear and sufficient, and the dismissal was proportionate to the offence. Therefore, the application for relief from unfair dismissal was dismissed, and Nguyen was not reinstated or awarded compensation.

Anh Thanh Nguyen v Couriers Please Pty Ltd T/A Couriers Please

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established