Eric Chukau v Easy Signs Pty Limited

[2025] FWC 1437

[2025] FWC 1437

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 399A - Dismissing applications

Eric Chukau
v

Easy Signs Pty Limited

(U2025/2960)

COMMISSIONER SLOAN SYDNEY, 26 MAY 2025

Application for an unfair dismissal remedy – section 399A application to dismiss – application granted

1. On 13 March 2025, Eric Chukau filed an application for an unfair dismissal remedy.[1] He has done nothing since then to involve himself in the proceedings.

1. The matter was listed for conciliation by telephone on 10 April 2025. Mr Chukau did not join the call. The Commission made several unsuccessful attempts on that day to make contact with him.

1. On the same day, the Commission wrote to the parties. Amongst other things, the Commission’s correspondence asked Mr Chukau to explain why he was unable to attend and participate in the scheduled conciliation. The letter invited the parties to indicate whether they wished to have the matter listed again for conciliation. Easy Signs Pty Limited responded by saying that it was willing to participate in conciliation. Mr Chukau did not respond.

1. The matter was allocated to me. I listed the matter for directions by telephone on 8 May 2025. Mr Chukau did not join the call. My Chambers made several unsuccessful attempts at the time to contact him by telephone and by email.

1. During the directions hearing, Easy Signs asked the Commission to dismiss the matter under section 399A.

1. I arranged for an email to be sent to Mr Chukau later on 8 May 2025 in these terms:

“Dear Mr Chukau

These proceedings were listed for Directions before Commissioner Sloan at 9.00am today. You did not attend. Several attempts were made to contact you by telephone and email, without success.

We note that you also did not attend the staff conciliation on 10 April 2025 and have failed to respond to the Commission’s correspondences. Easy Signs Pty Ltd has applied under s 399A of the Fair Work Act 2009 to have your application dismissed. The Commissioner is considering that application. In that regard, the Commissioner invites you to make any submissions you wish to make as to why your application ought not be dismissed. You are required to provide your response by 4.00pm on Wednesday 14 May 2025.

If you wish to discontinue these proceedings, please complete Form F50 Notice of discontinuance. Alternatively, reply to this email confirming you would like to discontinue.” (Emphasis in original)

1. Mr Chukau did not respond to that email.

1. The Commission made further unsuccessful attempts to contact Mr Chukau by telephone on 26 May 2025.

Determination

1. Section s 399A(1) enables the Commission to dismiss an unfair dismissal application if the employer applies under s 399A(2) for it to do so. The grounds on which the Commission may dismiss an unfair dismissal application include the Commission being satisfied that the applicant has unreasonably “failed to comply with a direction or order of the FWC relating to the application”.[2]

1. The Commission is not required to hold a hearing except as provided by the Act.[3] There are no facts in dispute in respect of Easy Signs’ dismissal application that would require the Commission to conduct a hearing of it.[4]

1. The jurisdictional pre-requisites for me to dismiss Mr Chukau’s unfair dismissal application are met.[5] It is a matter of discretion whether I do so.

1. The power to dismiss a substantive application should only be exercised cautiously and sparingly. This is because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to the law before they have had their “day in court”.[6]

1. Numerous attempts have been made to contact Mr Chukau. He has failed to engage with his unfair dismissal application. He has ignored repeated attempts to make contact with him. He has shown no willingness to prosecute his case and has taken no steps to do so.

1. In these circumstances, I have determined to grant Easy Signs’ application to dismiss the proceedings.

1. I order that Mr Chukau’s unfair dismissal application be dismissed.

COMMISSIONER

[1] The application was made under Part 3-2 of the Fair Work Act 2009 (“Act”). In this decision, references to legislative provisions are references to the Act

[2] Section 399A(1)(b)

[3] Section 593(1)

[4] Section 397 only requires a hearing to be conducted in relation to a matter arising under Part 3-2 if, and to the extent, that the matter involves facts the existence of which is in dispute.

[5] Section 399A(2) is satisfied by Easy Signs’ application. Section 399(1)(b) is satisfied by Mr Chukau’s failure to comply with directions, as described above. See Lockyear v Graeme Cox[2021] FWCFB 875 at [55]

[6] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 at [31]

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