Waruna Nanayakkara v Fujitsu Australia Ltd

[2025] FWC 221

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Waruna Nanayakkara
v

Fujitsu Australia Ltd

(U2025/522)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 23 JANUARY 2025

Unfair dismissal application – application dismissed

Earlier today, I dismissed an unfair dismissal application made by Waruna Nanayakkara against Fujitsu Australia Ltd (Fujitsu) under s 394 for the Fair Work Act 2009 (Act). I now publish my decision, as I am required to do by s 601. It was clear from the parties’ correspondence to the Commission that Mr Nanayakkara remained employed by Fujitsu. Section 394 of the Act provides that an application for an unfair dismissal remedy may be made by ‘a person who has been dismissed’. Mr Nanayakkara was not such a person and had no standing to make an unfair dismissal application. I advised the parties that there was no proper basis for me to adopt the proposal of Mr Nanayakkara to ‘allow the application to remain in progress’ and permit him to notify the Commission when the redundancy process was completed. If Fujitsu terminates his employment, Mr Nanayakkara may lodge an unfair dismissal application at that time.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Waruna Nanayakkara lodged an unfair dismissal application against Fujitsu Australia Ltd with the Fair Work Commission. Nanayakkara contended that his dismissal was unjust, alleging it was related to his involvement in union activities. Fujitsu argued that Nanayakkara was not dismissed but was instead undergoing a redundancy process, and therefore, he did not have standing to apply for unfair dismissal under section 394 of the Fair Work Act 2009. The Commission was required to determine whether Nanayakkara had standing to make the application, given that he was still employed by Fujitsu at the time the application was made.

The key issue before the Commission was whether Nanayakkara had standing to apply for unfair dismissal while he was still employed by Fujitsu. The Commission examined section 394 of the Fair Work Act 2009, which stipulates that an unfair dismissal application can only be made by a person who has been dismissed. The Commission also considered the implications of Nanayakkara's ongoing employment status on his standing to seek relief. The Commission determined that since Nanayakkara was not dismissed but was undergoing a redundancy process, he did not meet the criteria for standing to make an unfair dismissal application.

The Commission found that Nanayakkara did not have standing to make the unfair dismissal application because he was not dismissed but rather was in the process of being made redundant. The Commission dismissed the application on the grounds that Nanayakkara did not satisfy the requirement of being dismissed to have standing under section 394 of the Fair Work Act 2009. The Commission further clarified that if Fujitsu were to terminate Nanayakkara's employment, he could then lodge an unfair dismissal application at that time. The Commission did not find it appropriate to allow the application to remain in progress pending the completion of the redundancy process.

The Fair Work Commission dismissed the unfair dismissal application made by Waruna Nanayakkara against Fujitsu Australia Ltd. The decision emphasised that Nanayakkara did not have standing to apply for unfair dismissal while he remained employed. The Commission clarified that if Fujitsu were to terminate Nanayakkara's employment in the future, he could then make an unfair dismissal application at that time. The Commission's decision was based on the interpretation of section 394 of the Fair Work Act 2009 and the requirement for an applicant to be dismissed to have standing.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established