Kwai Yan Chan v Sun Ho Restaurant Campsie Summary

[2025] FWC 2697

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal
s.365—General protections
s.773—Termination of employment

Kwai Yan Chan
v

Sun Ho Restaurant Campsie

(U2025/5306, C2025/3511 and C2025/3513)

DEPUTY PRESIDENT EASTON

SYDNEY, 11 SEPTEMBER 2025

Application for an unfair dismissal remedy, Application to deal with contraventions involving dismissal and Application to deal with an unlawful termination dispute – dismissal under s.587 at the Commission’s initiative for want of prosecution.

On 20 April 2025, Mr Kwai Yan Chan made three simultaneous applications under the Fair Work Act 2009 (Cth) by way of a single email: an unfair dismissal application (s.394), a general protections application involving dismissal (s.365) and an unlawful termination application (s.773) to the Fair Work Commission.

Section 725 of the Fair Work Act 2009 prohibits the making of multiple applications in relation to the same dismissal.

Commission staff tried to contact Mr Chan on 22 May, 27 May, 11 June and 2 July 2025 about his applications by telephone with an interpreter, email and SMS. Mr Chan has not responded to the Commission’s inquiries.

Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages of the proceedings for want of prosecution. If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

I am satisfied that Mr Chan has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the applications under s.587. In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Chan’s applications. I make the following order:

A.The applications under s.394, s.365 and s.773 of the Fair Work Act 2009 (Cth) made by Mr Kwai Yan Chan on 20 April 2025 are dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr Kwai Yan Chan filed three applications under the Fair Work Act 2009 on 20 April 2025 with the Fair Work Commission: an unfair dismissal application, a general protections application involving dismissal, and an unlawful termination application. The applications related to his dismissal from Sun Ho Restaurant Campsie. The Commission attempted to contact Mr Chan multiple times between May and July 2025 but received no response. Mr Chan’s failure to engage with the Commission’s inquiries led to the applications being dismissed under s.587 of the Fair Work Act 2009 for want of prosecution.

The primary legal issue before the court was whether Mr Chan's conduct or omissions demonstrated that he was no longer willing to participate in his own case, thereby warranting the dismissal of his applications. The court found that Mr Chan had ample opportunity to present his case but had failed to respond to the Commission's attempts to contact him. This failure to engage with the Commission's inquiries and proceedings was sufficient for the Deputy President to conclude that Mr Chan was no longer willing to participate in his own case.

The court considered the circumstances and the provisions of the Fair Work Act 2009, which allow the Commission to dismiss an application for want of prosecution if the applicant is not participating in the proceedings. The court noted the precedent in Viavattene v Health Care Australia, where it was held that the Commission is not required to persevere with an application if the applicant’s conduct shows a lack of willingness to participate. Given Mr Chan's unresponsiveness, the court found that the facility under s.587 could and should be engaged to dismiss the applications.

The Fair Work Commission dismissed the applications made by Mr Kwai Yan Chan on 20 April 2025 under sections 394, 365, and 773 of the Fair Work Act 2009. The dismissal was made on the Commission’s own initiative for want of prosecution, due to Mr Chan's failure to respond to the Commission’s attempts to contact him and engage with the proceedings.

Kwai Yan Chan v Sun Ho Restaurant Campsie

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established