Mr Thanarooban Thanabalasingham v Swan Transit Services Pty Ltd - [2023] FWC 61

[2023] FWC 61

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Thanarooban Thanabalasingham
v

Swan Transit Services Pty Ltd

(U2022/8203)

DEPUTY PRESIDENT BINET

PERTH, 13 JANUARY 2023

Application for an unfair dismissal remedy

On 9 August 2022, Mr Thanarooban Thanabalasingham (Mr Thanabalasingham) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC). Mr Thanabalasingham alleges he was unfairly dismissed by Swan Transit Services Pty Ltd (Swan Transit) and seeks a remedy of reinstatement.

On 28 August 2022, Swan Transit filed a Form F3 - Employer Response to an unfair dismissal application (Form F3) denying that Mr Thanabalasingham had been dismissed from his employment (Jurisdictional Objection).

On 22 September 2022 and 24 October 2022 the parties participated in conciliation conferences, but the issues in dispute could not be resolved. The Jurisdiction Objection was discussed in depth at the conferences. Mr Thanabalasingham and his legal representative were counselled that proceeding with an Application in circumstances where the Application has no reasonable prospect of success might result in a successful application for costs being brought against Mr Thanabalasingham and/or his legal representative.

On 2 November 2022 Swan Transit applied for the Application to be dismissed pursuant to section 587(1)(c) of the FW Act on the grounds that the Application had no reasonable prospect of success (Dismissal Application).

Taking into account the parties wishes and circumstances, it was determined that a hearing rather than a determinative conference would be the most effective and efficient way to determine the Dismissal Application. Consequently, the Dismissal Application was listed for a hearing in Perth on 11 January 2022 (Hearing).

Directions for the filing of materials in advance of the Hearing were issued to the parties on 27 October 2022 (Directions).

Permission to be represented

The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]

Both parties sought permission to be represented at the Hearing.

Having considered the submissions of the parties, leave was granted to Mr Thanabalasingham to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
At the Hearing, Mr Thanabalasingham was represented by Mr Sivan Jayakody of Sivan Legal Lawyers (Mr Jayakody). Mr Simon Clayer (Mr Clayer), in house counsel for Swan Transit, appeared on behalf of Swan Transit.

Evidence

The Directions required the parties to file their witness and documentary evidence in advance of the Hearing. Mr Thanabalasingham filed a witness statement on his own behalf, gave oral evidence at the Hearing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 61
Decision Date: 13 JANUARY 2023

CaseChat Overview and Summary

Mr Thanarooban Thanabalasingham has brought an application against Swan Transit Services Pty Ltd seeking a remedy for unfair dismissal. Mr Thanabalasingham claims he was dismissed from his employment as a bus driver, while Swan Transit denies that any dismissal took place. The dispute hinges on whether Mr Thanabalasingham was fairly dismissed and if he was protected from unfair dismissal at the time of the alleged dismissal.

The central legal issue before the court was whether Mr Thanabalasingham was dismissed from his employment with Swan Transit. To determine this, the court examined if the dismissal was communicated to Mr Thanabalasingham, if he was informed of the termination of his employment, and if the duties he performed were part of a return-to-work program. The court also considered if Mr Thanabalasingham's employment could continue despite the unavailability of suitable duties for him to perform.

The Fair Work Commission found that Mr Thanabalasingham was not dismissed for the purposes of section 385 of the Fair Work Act 2009. The Commission determined that there was no evidence that Mr Thanabalasingham was notified of his dismissal or that his employment had been terminated. Furthermore, the duties performed by Mr Thanabalasingham were not part of a return-to-work program but were temporary tasks provided to him while he undertook the rehabilitation process. Consequently, the Fair Work Commission upheld Swan Transit's jurisdictional objection and dismissed the Application.

The Fair Work Commission issued an order dismissing the Application brought by Mr Thanarooban Thanabalasingham against Swan Transit Services Pty Ltd. The Commission found that there was no dismissal as defined in the Fair Work Act 2009, and therefore, the applicant was not protected from unfair dismissal. As a result, the Commission could not consider the merits of the application for a remedy from unfair dismissal.

Orders