Shun Thangathurai v Little Heroes Swim School Limited T/A Little Heroes Swim School

[2016] FWC 6331

[2016] FWC 6331

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shun Thangathurai
v
Little Heroes Swim School Limited T/A Little Heroes Swim School
(U2015/5308)

COMMISSIONER WILSON MELBOURNE, 7 SEPTEMBER 2016

Application for relief from unfair dismissal.

[1] On 10 May 2015, Mr Shun Thangathurai made an application for unfair dismissal remedy in relation to his dismissal under s.394 of the Fair Work Act 2009.

[2] On 22 May 2015, Little Heroes Swim School filed their response to the application for unfair dismissal remedy.

[3] The matter was the subject of conciliation on 2 June 2015 however, the matter was not resolved.

[4] On 3 July 2015, Mr Thangathurai’s representative verbally advised the Commission that the matter had settled and that an email confirming same will be forwarded to the Commission in due course.

[5] On 25 November 2015, 31 December 2015, 5 April 2016 and 4 August 2016, the Commission forwarded email correspondence to the Mr Thangathurai and his representative advising that the application remained open and that a Form F50 Notice of Discontinuance was required.

[6] On 23 August 2016, the Commission forwarded the following correspondence to Mr Thangathurai:

“On 3 July 2015, your representative advised the Fair Work Commission that the above matter had reached an ‘in-principle’ settlement agreement.

On 14 July 2015, the Commission issued a Notice of Listing vacating the Directions and Hearing dates and requesting a Notice of Discontinuance be filed in due course.

Some time has passed since this Notice was issued and several requests for your Representative to file a Notice of Discontinuance have been made. However, our records still indicate that a Notice of Discontinuance has not been filed with the Commission.

Please file a Notice of Discontinuance before close of business Tuesday, 30 August 2016 so that we may formally close the file. You can file the Notice of Discontinuance by email at [email protected] or by post to:
Fair Work Commission
GPO Box 1994
MELBOURNE VIC 3001

To notify the Commission that you wish to discontinue your application, you can also do one of the following:

• call the Unfair Dismissal Case Management Team on 1800 269 491 to discontinue your application by telephone; or



• send a letter, email or fax to the Commission confirming your wish to discontinue.

If the Commission does not hear from you by close of business on Tuesday, 30 August 2016, a decision will be issued by Deputy President Gooley, Termination of Employment Panel Head, to dismiss your matter without further notice to you.”

[7] To date, the Commission has not received a completed Form F50.

[8] Having regard to the material before me, I am satisfied that given Mr Thangathurai’s advice, that he intended to discontinue his application, but has not filed a Form F50.

[9] 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.”

[10] I have decided to waive compliance with the Fair Work Commission Rules 2013.

[11] Rule 6 of the Rules provides that the Commission may dispense with compliance with the Rules. I have decided to waive compliance with the requirement that Mr Thangathurai file and serve a Form F50 as I am satisfied that Mr Thangathurai has discontinued his application.

[12]
The application is therefore, discontinued.

COMMISSIONER

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