Ryan Wehr v First Quantum Minerals T/A FQM

[2020] FWC 2760

[2020] FWC 2760

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ryan Wehr
v
First Quantum Minerals T/A FQM
(U2020/6463)

COMMISSIONER BISSETT MELBOURNE, 22 JUNE 2020

Application for an unfair dismissal remedy.

[1] On 9 May 2020 Mr Ryan Wehr made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] On his Form F2 Unfair dismissal application (Form F2) Mr Wehr advised that he commenced employment with First Quantum Minerals T/A FQM (Respondent) on 26 February 2020 and that his dismissal took effect from 8 May 2020.

[3] On 11 May 2020 the Commission attempted to contact Mr Wehr on his nominated telephone number. A voicemail message was left advising that based on the information he had provided, it appeared he did not meet the minimum employment period necessary to make an unfair dismissal application. The Commission requested he return the call or respond to the correspondence he would shortly receive from the Commission.

[4] Following that call, the Commission emailed correspondence to Mr Wehr’s nominated email address advising that the basis of the information contained in his Form F2, he had not served the minimum employment period. The correspondence required Mr Wehr to file any documents or evidence to support his claim of having served the minimum employment period within 14 days. Mr Wehr was advised that, in the absence of a response, his application may be dismissed.

[5] Later that day Mr Wehr emailed correspondence to the Commission stating:

… I understand the minimum 6 month employment period to be eligible for an unfair dismissal claim. However, I am stuck overseas due to this "pandemic" and I see no sign of help or advice from the government in regards to my employment, which has now been terminated. Please let me know further whether there is any case for unfair dismissal with the pandemic in mind.

[6] On 12 May 2020 the Commission emailed correspondence to Mr Wehr advising that to be eligible to make an unfair dismissal claim, he must have served the minimum employment period which is 6 months or 12 months if the Respondent was a small business. The Commission also advised that if Mr Wehr wanted to seek legal advice he could contact a community legal centre. The Commission provided Mr Wehr with a link to a community legal centre website.

[7] On 22 May 2020 the Commission attempted to contact Mr Wehr on his nominated telephone number. The call went straight through to a voicemail service. A voicemail message was left advising that it appeared he had not met the minimum employment period and the matter was at risk of being dismissed. The Commission advised that if he intended to discontinue his application he should notify the Commission as soon as possible. A number was left for a return call.

[8] To date, Mr Wehr has not provided a further response to the Commission’s correspondence nor filed any evidence to support that he has met the minimum employment period.

[9] Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[10] Section 383 of the FW Act sets out the minimum employment period:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[11] Section 587(1) of the FW Act provides:

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.

[12] In the circumstances of this matter, I am satisfied Mr Wehr has not completed the required minimum employment period and his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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