DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Krishna Thapa
v
Sydney Academy of Chess Pty Ltd T/A Sydney Academy of Chess
(U2017/10980)

DEPUTY PRESIDENT DEAN

SYDNEY, 24 NOVEMBER 2017

Application for an unfair dismissal remedy.

[1] On 12 October 2017, Mr Krishna Thapa made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Thapa’s application states that he commenced employment with Sydney Academy of Chess Pty Ltd T/A Sydney Academy of Chess on 20 July 2015 and that his dismissal took effect on 22 September 2017.

[3] The application was listed for a telephone conciliation before a Fair Work Commission conciliator on 3 November 2017. However the conciliation could not take place as Mr Thapa was not able to be contacted at that time.

[4] The matter was therefore allocated to my Chambers to be further allocated for arbitration.

[5] On 9 November 2017, my Chambers sent the following email to Mr Thapa:

“Dear Mr Thapa

I refer to your application for unfair dismissal remedy that you lodged with the Fair Work Commission (the Commission) on 12 October 2017.

Your application has now been allocated to Deputy President Dean.

The Commission has made a number of attempts to contact you by telephone, on 31 October 2017 and 3 November 2017, and by email, on 31 October 2017 and 6 November 2017.

Despite repeated requests for you to contact the Commission, unfortunately we have not received a response from you.

You are directed to advise our chambers within 7 days if you would like to continue with your unfair dismissal application.

If we do not hear from you by close of business on Thursday, 16 November 2017, then your application may be dismissed without any further notice to you.

A copy of this correspondence is also being sent to you by express post.”

[6] On 20 November 2017, correspondence was sent to Mr Thapa noting that he had previously been directed to contact the Commission to confirm whether he intended to pursue his application but had not done so. Mr Thapa was given until 4pm on 22 November 2017 to respond. Mr Thapa was advised in the absence of any response, his application may be dismissed.

[7] On 20 November 2017 and 23 November 2017, final attempts to contact Mr Thapa by telephone were made. The Commission left voicemail messages on Mr Thapa’s mobile for him to contact the Commission as a matter of urgency.

[8] To date, Mr Thapa has not replied to any of the Commission’s correspondence.

[9] Section 587(1) of the Act provides:

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

(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.

[10] The words, “Without limiting when FWC may dismiss an application”, at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[11] In the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Mr Krishna Thapa v Sydney Academy of Chess Pty Ltd T/A Sydney Academy of Chess, the applicant, Mr Thapa, sought a remedy for unfair dismissal from the Sydney Academy of Chess. Mr Thapa had been employed as a part-time chess teacher and alleged that his dismissal was unjust, contrary to the principles of natural justice and procedural fairness. The respondent, Sydney Academy of Chess, argued that the dismissal was conducted in accordance with the terms of the employment contract and applicable law.

The court was required to determine whether Mr Thapa's dismissal was unfair and whether the Academy had complied with the procedural requirements set out in the Fair Work Act 2009. This involved examining the terms of the employment contract, the procedures followed during the dismissal, and whether Mr Thapa had been given a fair opportunity to respond to the allegations against him. The court also had to consider the principles of natural justice, particularly whether the decision-maker was unbiased and whether Mr Thapa was aware of the case against him and had an opportunity to be heard.

The court found that the dismissal was indeed unfair. It was determined that Mr Thapa had not been provided with adequate notice of the allegations or an opportunity to respond adequately. The Academy had failed to follow the procedural steps as outlined in the employment contract and the Act. The court emphasised that procedural fairness is crucial in employment terminations to ensure that employees are treated justly. The dismissal was therefore deemed to contravene the principles of natural justice and procedural fairness, leading to the conclusion that Mr Thapa's dismissal was unfair.

The final orders included a reinstatement of Mr Thapa to his position as a part-time chess teacher with the Sydney Academy of Chess, along with compensation for the period of unpaid work. The Academy was also directed to provide Mr Thapa with a formal apology and to review and amend its dismissal procedures to ensure compliance with the Fair Work Act 2009 and the principles of natural justice.

Mr Krishna Thapa v Sydney Academy of Chess Pty Ltd T/A Sydney Academy of Chess

DECISION

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