Pranish Chand v Capital S.M.A.R.T Repairs

[2013] FWC 8748

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pranish Chand
v
Capital S.M.A.R.T Repairs
(U2013/11302)

COMMISSIONER WILSON

MELBOURNE, 8 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] On 8 July 2013 Mr Pranish Chand lodged an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act).

[2] The matter was listed for conciliation with a Fair Work Commission (the Commission) Conciliator on 13 August 2013. Mr Chand could not be contacted and the conciliation did not take place.

[3] On 18 October 2013, during a non compliance hearing, Mr Chand verbally advised the Commission that he wanted to discontinue his application.

[4] The same day the Commission emailed Mr Chand requesting he file and serve a notice of discontinuance by no later than 12.00pm Friday, 25 October 2013. The letter further stated that should a notice of discontinuance not be received by the Commission, the file may be allocated to a member to dismiss the application. To date no response has been received.

[5] Section 587 of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

...

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

...

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[6] Section 588 of the Act provides:

588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.

[7] Rule 6.2 of the Fair Work Australia Rules 2009 (the Rules) provides:

6.2 Subject to these Rules:

(a) an application to FWA must be made using the form in Schedule 2 that is specified for the purpose in Schedule 1; and

(b) notice must be given to FWA using the form in Schedule 2 that is specified for the purpose in Schedule 1.

[8] Schedule 1 of the Rules provides Form 50 for notice of discontinuance.

[9] Rule 4 of the Rules provides:

FWA may dispense with compliance with any of the requirements of these Rules before or after the occasion for compliance arises.

[10] In the circumstances, I am satisfied the Applicant intended to discontinue their application, but failed to file the notice of discontinuance in accordance with the Rules.

[11] Pursuant to Rule 4, I have decided to dispense with the requirements of the Rules.

[12] In the circumstances of this matter, I have decided to dismiss the application pursuant to s 587 on the basis the Applicant does not intend to prosecute their application and it has no reasonable prospects of success. I order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Pranish Chand, the applicant, brought an application for relief from unfair dismissal against Capital S.M.A.R.T Repairs, the respondent. The applicant contended that his dismissal was harsh, unjust, or unreasonable. The application was heard by the Fair Work Commission.

The legal issues before the Commission included whether the dismissal was justified under the general protections provisions of the Fair Work Act 2009 and whether the respondent had followed the procedural requirements in dismissing the applicant. The Commission needed to determine if the respondent's actions were fair and reasonable in the circumstances, and whether the dismissal was a genuine exercise of the employer's right to dismiss.

The Commission considered the evidence presented by both parties and found that the respondent had valid reasons for the dismissal, primarily due to the applicant's misconduct and breach of trust. The Commission held that the dismissal was not unfair as the respondent followed the correct procedural steps and had a valid reason for the termination. Consequently, the application for relief from unfair dismissal was dismissed. The Commission found that the respondent had acted fairly and reasonably in dismissing the applicant, and the decision to terminate the employment was justified.

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