Mr Jeffrey Lyndon Piefke v Rio Tinto

[2022] FWC 669

[2022] FWC 669 [Note: An appeal pursuant to s.604 (C2022/2126) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Jeffrey Lyndon Piefke
v

Rio Tinto

(U2022/255)

COMMISSIONER WILLIAMS PERTH, 28 MARCH 2022

Application for an unfair dismissal remedy

1. This decision concerns an application made by Mr Jeffrey Lindon Piefke (Mr Piefke) on 1 January 2022 for an unfair dismissal remedy under section 394 of the Fair Work Act2009. The employer named in the application as the Respondent is Rio Tinto. The address of the employer given by Mr Piefke is Gove, NT and the postal address is a Northern Territory Post Office Box.

1. Mr Piefke states that he began working for the employer in March 2005 and was notified of his dismissal on 22 December 2021 and his dismissal took effect that day.

1. The information provided by Mr Piefke in the application including the attached emails provide little information relevant to the circumstances of his dismissal or the reasons he asserts for his dismissal and why this was unfair.

1. In reply, a Form F 4 – Objection to unfair dismissal application and a Form F3 – Employer response to unfair dismissal application were lodged by Rio Tinto Aluminium Limited (Rio Tinto Aluminium).

1. In these forms Rio Tinto Aluminium says that Mr Piefke began working for it in June 2005 and that he resigned effective 31 January 2019 in accordance with the terms of a Deed of Settlement and Release between him and Rio Tinto Aluminium.

1. Rio Tinto Aluminium, to the extent that the application concerns this period of employment, objects to this application on the grounds that Mr Piefke was not dismissed, that the application is made out of time and finally that the terms of the Deed of Settlement and Release preclude Mr Piefke from making such a claim as this.

1. Rio Tinto Aluminium say that in late 2021 Mr Piefke sought but was unsuccessful in obtaining Rio Tinto site access with one of Rio Tinto’s contracting partners.

1. Rio Tinto Aluminium, to the extent that the application concerns those circumstances, objects to the application on the grounds that Mr Piefke was not a Rio Tinto employee and was not dismissed by Rio Tinto.

1. Mr Piefke’s application was allocated to myself for determination on 28 February 2022.

1. On 4 March 2022 the Commission wrote to Mr Piefke as follows:

“Your application identifies your employer as having been Rio Tinto, in Gove, Northern Territory.

Your application says you began working with your employer in March 2005 and were notified of your dismissal on 22 December 2021 and your dismissal took effect on that date.

Your application contains very limited explanation of your dismissal. None of the emails you have attached to your application suggest you were employed by Rio Tinto in December 2021.

As you know Rio Tinto Aluminium Limited in response to your application have filed an objection which states you were employed with Rio Tinto Aluminium Limited on 5 June 2005 and resigned effective on 31 January 2019.

Consequently, the Commission directs you to file with the Commission and serve on the Respondent by no later than Friday, 18 March 2022 a witness statement, with any supporting documentary evidence, which proves as your application states that you were employed by Rio Tinto immediately before 22 December 2021 and that you were dismissed by Rio Tinto on that date.

Your materials can be provided to the Commission by email to [email protected].

The Commission will consider the materials you file and decide whether your application has a reasonable prospect of success or is frivolous, and you are advised there is the potential for your application to be dismissed under section 587 of the Fair Work Act 2009.”

1. Assumedly in response to the Commission’s letter Mr Piefke has replied by sending a significant number of emails to the Commission’s chambers email address.

1. Given the volume of these it is unhelpful to attempt to characterise the emails other than to note many are historical emails between Mr Piefke and a number of other persons or organisations which he has forwarded to the Commission without meaningful explanation.

1. The emails themselves do not in my view demonstrate at all that Mr Piefke was employed by Rio Tinto immediately before 22 December 2021 and/or that he was dismissed by Rio Tinto on that date.

1. Mr Piefke has not provided any explanation as to the relevance of these emails to the Commission’s direction.

1. Mr Piefke has not provided a witness statement.

1. Mr Piefke has been in contact with my chambers on a number of occasions by telephone. He has enquired as to what other types of applications he can make and has been referred to the Commission’s website.

1. Mr Piefke has made another application concerning an order to stop bullying.

1. Notwithstanding this development Mr Piefke has advised that he wishes to continue with this application.

1. I note that Mr Piefke made an unfair dismissal remedy application in 2020 concerning a different employer respondent. Following a hearing, the Commission as currently constituted, dismissed that application with a decision issued on 26 October 2020[1]. The relevance to the current application is that Mr Piefke already has some experience in Commission proceedings, familiarity with the Commission issuing directions and the consequences of not complying with those directions.

Consideration

1. Obviously if Mr Piefke cannot demonstrate to the Commission that he was employed by Rio Tinto at the time he says he was and that he was then dismissed, it is not possible for him to succeed with this unfair dismissal remedy application.

1. Mr Piefke has not been prevented from submitting his case for determination. The Commission’s direction provided him with the opportunity to submit evidence in support of an essential element of his case.

1. Mr Piefke has not provided a witness statement as directed. What material he has provided to the Commission does not demonstrate that he was employed by Rio Tinto immediately before 22 December 2021 and/or that he was then dismissed, nor indeed does it demonstrate that he was employed by Rio Tinto at any time in 2021.

1. My decision consequently is that Mr Piefke has no reasonable prospect of succeeding in this application. Consequently, pursuant to section 587 this application will be dismissed. An order [PR739699] to that effect will be issued.

[1] [2020] FWC 5613.

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