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 UDTRosters@fwc.gov.au 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

Printed by authority of the Commonwealth Government Printer

The Federal Circuit Court considered an application for relief from unfair dismissal made by Shun Thangathurai against Little Heroes Swim School Limited T/A Little Heroes Swim School. The applicant, Thangathurai, sought to challenge his dismissal on the grounds that it was unfair and constituted a breach of the Fair Work Act 2009. Thangathurai had been employed as a swimming coach and alleged that his dismissal was unjust and contrary to the principles of fairness and equity. The primary dispute centred around the circumstances leading to his termination and whether the employer had just cause or followed the appropriate procedural requirements in dismissing him.

The court was required to determine whether the dismissal was harsh, unjust, or unreasonable, and whether the employer had valid grounds for terminating the employment contract. This involved assessing the evidence presented by both parties, including the reasons provided by the employer for the dismissal and any procedural fairness considerations. The court needed to evaluate whether the employer's actions were in line with the requirements of the Fair Work Act and if the dismissal process adhered to the principles of natural justice and procedural fairness.

The court found that the employer had not acted in accordance with the principles of procedural fairness and that the dismissal was unjust. The reasons provided by the employer for the dismissal were deemed insufficient, and the court concluded that the employer had failed to provide adequate reasons or follow proper procedures. The court also noted that the employer had not considered all relevant information and had not given the applicant a fair opportunity to respond to the allegations against him. As a result, the court granted the application for relief from unfair dismissal and ordered the employer to reinstate the applicant to his former position and compensate him for the loss of wages and entitlements.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established