Yu-Hsiang Wu v Rugby Farm T/A Rugby Regional Employment Pty

[2021] FWC 4827

[2021] FWC 4827

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yu-Hsiang Wu
v
Rugby Farm T/A Rugby Regional Employment Pty
(U2021/5978)

COMMISSIONER BISSETT MELBOURNE, 6 AUGUST 2021

Application for an unfair dismissal remedy.

[1] On 8 July 2021 Mr Yu-Hsiang Wu 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). Mr Wu alleged that he was unfairly dismissed by Rugby Farm T/A Rugby Regional Employment Pty (the Respondent) on 24 June 2021.

[2] Mr Wu advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with the Respondent on 8 May 2021 and that his dismissal took effect on 24 June 2021.

[3] On 9 July 2021, the Commission contacted Mr Wu on his nominated telephone number. The Commission advised Mr Wu that he had not served the minimum employment period as the dates on the application indicated he was employed for less than 6 months.

[4] Mr Wu advised that his employment had been seasonal. His first season commenced in May 2020 and concluded in November 2020 at which point he found alternative employment. He was then rehired for a second season which commenced on 8 May 2021 and concluded when he was terminated on 24 June 2021. Mr Wu was informed that the minimum employment period may not have been met as the periods of employment were not continuous.

[5] Later that day, the Commission emailed correspondence to Mr Wu’s nominated email address advising him that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Wu to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if he did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Wu’s nominated telephone number, requesting that he contact the Commission.

[6] As the required documentation was not received, on 23 July 2021, the Commission attempted to contact Mr Wu via their nominated telephone number. Mr Wu did not answer. A voicemail message was left requesting Mr Wu urgently contact the Commission.

[7] To date, Mr Wu has not replied to the Commission’s correspondence or responded to the Commission’s most recent phone message.

[8] 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.

[9] Section 383 of the FW Act sets out the minimum employment period as follows:

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.

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

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 prospect of success.

[11] Having regard to the circumstances of this matter I am satisfied that as Mr Wu has not completed the required minimum employment period under the FW Act, his/her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

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