Hong-Phuc Christopher Hua v Nayax AU Pty Ltd

[2023] FWC 1898

[2023] FWC 1898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Hong-Phuc Christopher Hua
v

Nayax AU Pty Ltd

(U2023/4554)

DEPUTY PRESIDENT BOYCE SYDNEY, 1 AUGUST 2023

Application for an unfair dismissal remedy

Background

1. On 25 May 2023, Mr Hong-Phuc Christopher Hua filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). Mr Hua commenced employment with Nayax AU Pty Ltd (Respondent) on 22 July 2022 and was dismissed on 10 May 2023. In its Response, the Respondent raised objections that the Application was incompetent on the bases that no contravention of the Act had been alleged and that the Applicant had signed a Deed of Release relating to his employment.

1. The matter was allocated to my Chambers on 21 July 2023. A notice of listing was issued later that day, with the matter listed for Mention/Directions to deal with the objections raised on 25 July 2023.

1. The Applicant did not attend the Mention/Directions despite multiple attempts to contact them. Mr David Rosenberg, Antunes lawyers, appeared for the Respondent. The Respondent was directed to provide to Chambers and the Applicant material it relied upon in support of the jurisdictional objections it had raised.

1. The Respondent provided this material on 26 July 2023 by email at 3:47pm.

1. Later that day, the following email was sent to the parties (Direction Email):

“Dear Parties

U2023/4554 - Hong-Phuc Christopher Hua v Nayax AU Pty Ltd

The Applicant is directed to file any submissions and/or evidence he seeks to rely upon as to the basis upon which his unfair dismissal application ought not be dismissed as an “abuse of process” (having regard to the documents filed by the Respondent (by way of email from Mr Arvanitis on 26 July 2023, at 3:47pm)).

The Applicant should file such submissions and/or evidence by way of reply email by no later than 4.00pm AEST, Monday, 31 July 2023.

Yours faithfully

[Associate]”

1. Chambers received no correspondence from the Applicant in compliance with the Direction Email.

Legislative Provisions

“587 Dismissing applications

(1)      Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)the application is not made in accordance with this Act; or

(b)the application is frivolous or vexatious; or

(c)the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2)      Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)is frivolous or vexatious; or

(b)has no reasonable prospects of success.

(3)The FWC may dismiss an application:

(a)on its own initiative; or

(b)on application.”

1. In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587 of the Act:

“[57] Section 587 gives [the Fair Work Commission] the power to dismiss a matter. Section 587(a), (b) and do not limit [the Fair Work Commission’s] power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications [the Fair Work Commission] is required to afford a fair go all round to both employers and employees. Further, [the Fair Work Commission] must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”[1]

Consideration

1. As the Applicant has made no attempt to comply with direction to file and serve submissions and evidence prosecuting his case, or to explain his non-compliance with directions and non-attendance at a listing, I have decided to dismiss his Application.

1. In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s non-compliance with directions and non-attendance is wholly unexplained. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with repeated opportunities to prosecute his case, and/or contact the Commission to explain his non-compliance, but has instead (including by his silence) expressed a clear disinterest in process, procedure and the prosecution of his own case. Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

[1] See McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, [9].

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