Evan Tzoukas v Hype Moore Park Pty Ltd - [2023] FWC 3324

[2023] FWC 3324

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

ss.400A and 611—Costs application

Evan Tzoukas
v

Hype Moore Park Pty Ltd

(U2023/4226)

COMMISSIONER CRAWFORD

SYDNEY, 13 DECEMBER 2023

Unfair dismissal – application discontinued by employee – costs application by employer – application dismissed

BACKGROUND – UNFAIR DISMISSAL APPLICATION

On 16 May 2023, Evan Tzoukas (Mr Tzoukas) filed a Form F2 unfair dismissal application. The application indicated Mr Tzoukas was dismissed by Hyper Karting Pty Ltd (Hyper Karting) on 26 April 2023. The application raised various concerns about Mr Tzoukas’ treatment by the owner of Hyper Karting, Andrew Richardson (Mr Richardson).

Hyper Karting and its related entities operate a go-karting track in the carpark of the Entertainment Quarter at Moore Park in Sydney. Mr Tzoukas commenced employment on 12 May 2021[1] and was employed as Facilities and Workshop Manager[2] prior to his employment ending on 26 April 2023.

On 13 June 2023, a Form F3 response form was filed on behalf of “Hyper Karting Pty Ltd & Group Companies”. The Form F3 identified a jurisdictional objection on the basis that Mr Tzoukas resigned rather than being dismissed. No other jurisdictional objections were raised.

Attached to the Form F3 response was a resignation letter signed by Mr Tzoukas, Mr Richardson and Nattali Taouk on 26 April 2023. In addition to indicating Mr Tzoukas was resigning from employment with “Hyper Karting (including Hype Moore Park Pty Ltd, Hyper Karting Pty Ltd & RiMO Australasia Pty Ltd” effective 26 April 2023, the letter relevantly stated:

“I have agreed to accept a pay run in the sum of $10,000 in full and final settlement of any claims whatsoever relating to my employment with Hyper Karting.”

The companies named in the header of the letter are Hyper Karting and Hype Moore Park Pty Ltd. The letter also contained a non-disparagement provision directed at Mr Tzoukas and a provision requiring Hyper Karting to “request” that its directors and executive officers not disparage Mr Tzoukas.

A conciliation conference was listed before a Commission staff member on 16 June 2023. This did not proceed because Mr Richardson declined to participate after finding out Mr Tzoukas was seeking to be legally represented. A conciliation conference was subsequently held on 14 July 2023 and no resolution was reached.

I listed the application for a Mention/Directions hearing on 15 August 2023. I granted permission for Mr Tzoukas to be represented by Edwina Clifton of counsel and Mr Richardson represented the employer. During the Mention/Directions hearing, I asked Mr Richardson which legal entity employed Mr Tzoukas and he indicated he would need further time to clarify this issue. I issued directions for the filing of material regarding whether Mr Tzoukas was dismissed and listed this issue for Determinative Conference/Hearing on 12 October 2023. Given the uncertainty concerning the employing entity, the directions referred to Hyper Karting Pty Ltd/Hype Moore Park Pty Ltd.

Submissions were filed on behalf of Hyper Karting Pty Ltd/Hype Moore Park Pty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 3324
Decision Date: 13 DECEMBER 2023

CaseChat Overview and Summary

Evan Tzoukas filed an unfair dismissal application against Hype Moore Park Pty Ltd and Hyper Karting Pty Ltd on 16 May 2023. Tzoukas claimed he was dismissed by Hyper Karting on 26 April 2023. Hyper Karting and its related entities operate a go-karting track in Sydney. Tzoukas was employed as Facilities and Workshop Manager before his employment ended on 26 April 2023. Hyper Karting filed a jurisdictional objection, claiming Tzoukas had resigned and attached a resignation letter with a release clause. Tzoukas argued the release clause was not binding due to duress and undue influence. Tzoukas discontinued his application on 6 October 2023 after the Commissioner suggested he may lack jurisdiction to set aside the release clause. Hyper Karting then filed a costs application seeking $13,860 including GST. The application was based on ss.400A and 611 of the Fair Work Act 2009. The Commissioner considered whether Tzoukas' application had no reasonable cause or prospect of success and whether he acted unreasonably in the conduct of the dispute. The Commissioner found the release clause was unusual as it was included in the resignation letter. Tzoukas was not represented when he filed the application. The employer did not argue the Commissioner lacked jurisdiction over the release clause until 11 October 2023. There was also confusion over the employing entity. The Commissioner concluded Tzoukas' application did not lack reasonable cause or prospect of success and that he did not act unreasonably. The costs application was dismissed.

[1] According to the Form F3 response. [2] According to the resignation letter dated 26 April 2023.

Orders