Federal Court of Australia

Wijaya v Matthews Brothers Engineering Pty Ltd [2026] FCA 138

ORDERS

THE COURT ORDERS THAT:

1.    The time limited for the applicant to apply to review the decision of National Judicial Registrar Edwards of 11 August 2025 is extended to 4 September 2025.

2.    The applicant’s application filed 4 September 2025 is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

MCELWAINE J:

1    The applicant (who is self-represented) is aggrieved by the summary termination of his employment on 11 November 2024, during his probationary period. With the benefit of a certificate pursuant to s 368 of the Fair Work Act 2009 (Cth) (FW Act) he commenced a proceeding in this Court on 3 February 2025 contending that his employer took action contrary to s 340 and referencing in very general terms ss 341 and 342 as well as discrimination contrary to s 351. Following some correspondence from the employer’s solicitor, he filed an amended statement of claim on 2 May 2025.

2    The amended statement of claim is in narrative form. On the termination day, the applicant was called into a meeting without notice and was immediately informed that his employment was terminated. When he requested an explanation, he was told that his personality was not a good fit for the job. He complained that he had not received any formal warning or performance review. His complaints did not alter the employer’s decision. His pleading replicates the provisions of ss 336, 340, 341, 342 and 351 of the FW Act. He then proceeds by way of three conclusions that his employer breached each of these provisions by:

(a)    terminating his employment without exercising due diligence in undertaking a performance assessment;

(b)    failing to recognise his “workplace rights by not giving the applicant a notice of performance assessment and a written notice explaining the cause of termination prior to the termination”; and

(c)    terminating his employment because his personality did not suit his employer, which he contends was discriminatory.

3    Notably his pleading does not specify the basis for his asserted workplace rights, there is no causal connexion identified between the termination decision having been taken because he had, had exercised or proposed to exercise a workplace right (or to prevent its exercise).

4    These omissions led to the employer’s interlocutory application of 9 May 2025 that the proceeding be summarily dismissed as failing to disclose a reasonable cause of action or as otherwise amounting to an abuse of process. The interlocutory application was heard and determined by National Judicial Registrar Edwards (as her Honour then was), who for unpublished reasons dated 11 August 2025, ordered that the proceeding be summarily dismissed (JR).

5    The applicant is now further aggrieved. He filed an application for review (as is his right) pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) on 4 September 2025, though it is dated 16 August 2025 (review application). The review application is three days out of time and the applicant requires an extension. He has not provided an adequate explanation for the delay, although one must always be conscious of the difficulties faced by litigants in person in complying with stipulated timetables. The period of extension is short and there is no prejudice to the respondent in circumstances where I have reached the firm conclusion that there is no merit in the review application, the reasoning of Registrar Edwards is compelling, the statement of claim fails to disclose a reasonable cause of action and, despite extending time, the review application must be dismissed.

6    My reasons may be shortly stated. Summary judgment pursuant to s 31A of the FCA Act may be entered where this Court is satisfied that a claim on its face has no reasonable prospect of success. It is not a requirement of this provision that the proceeding be hopeless or bound to fail, but that is the conclusion that I have reached in this case, notwithstanding the caution that attends the exercise of the power: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24], French CJ, Gummow J.

7    The fundamental obligation of the applicant in the articulation of his s 340 FW Act claim is to first identify what is the workplace right by reference to s 341 and then to allege that his employer took the termination adverse action because of the workplace right or to prevent its exercise. Before the statutory presumption at s 361 operates, the applicant must identify and establish as an objective fact the workplace right in issue and that adverse action was taken because of it: Alam v National Australia Bank Ltd [2021] FCAFC 178; (2021) 288 FCR 301 at [14], White, O’Callaghan and Colvin JJ; Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 at [119], Jessup J (Allsop CJ and White J agreeing). Absent a pleading that identifies those matters with sufficient particularity there is no cause of action for the taking of adverse action contrary to s 340.

8    The amended statement of claim is wholly defective in this regard for the succinct reasons stated by Registrar Edwards at JR [29] – [38]. In short, the applicant’s assertion that the employer failed to undertake a performance review and thereby breached some unidentified obligation of due diligence does not identify how the applicant had the concomitant workplace right. His contention that the employer failed to recognise another unidentified workplace right by not undertaking a performance assessment or providing a written notice explaining the cause of his termination suffers from the same defect. When I asked the applicant questions earlier today to identify for me just what it is that is contended to be his workplace right, he said that it is because he had a contract of employment as a permanent employee. That does not identify a workplace right within the meaning of the FW Act.

9    As to what appears to be the discrimination claim, that the employer took adverse action contrary to s 351 because of one or more of the statutory attributes, the applicant’s personality is not one of those attributes and, in any event, the applicant fails to identify why the termination (the adverse action) was discriminatory and hence wholly fails to plead the basis for the discriminatory conduct.

10    Registrar Edwards was perfectly correct to conclude that the applicant’s pleading rises no higher than a complaint about the manner of his dismissal which he considers having been unfair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31], Gray, Cowdroy and Reeves JJ. Overall, my conclusion is that the pleaded case is hopeless and there is no prospect that any reasonable cause of action may be resurrected and pleaded from facts that are not in issue. As such, this is not an occasion to grant any liberty to replead.

11    For these reasons, I grant an extension of time, dismiss the review application and confirm the summary dismissal order.

Associate:

Dated:    20 February 2026