Zoe Wehr v Cannridgepty Ltd Trust T/A Albany City Motors

[2020] FWC 4170

[2020] FWC 4170

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zoe Wehr
v
Cannridgepty Ltd Trust T/A Albany City Motors
(U2020/9723)

COMMISSIONER BISSETT MELBOURNE, 10 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 16 July 2020, Ms Zoe 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] Ms Wehr advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Cannridgepty Ltd Trust T/A Albany City Motors on 2 January 2020 and that her dismissal took effect on 30 June 2020.

[3] On 20 July 2020, the Commission attempted to contact Ms Wehr on her nominated telephone number. A voicemail message was left advising Ms Wehr that she had not served the minimum employment period

[4] That day the Commission also emailed correspondence to Ms Wehr’s nominated email address advising her that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Wehr to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Ms Wehr did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 3 August 2020 the Commission attempted to contact Ms Wehr on her nominated telephone number. However, Ms Wehr could not be reached. A voicemail message was left advising that she had not served the minimum employment period and requesting her to respond to the email that the Commission had previously sent her.

[6] To date, Ms Wehr has not replied to the Commission’s correspondence.

[7] 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.

[8] 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.

[9] 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 prospects of success.

[10] In the circumstances of this matter, I am satisfied Ms Wehr has not completed the required minimum employment period and her application has no reasonable prospects of success.

[11] Having regard to the circumstances of this matter I am satisfied that as Ms Wehr has not completed the required minimum employment period under the FW Act, 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 shortly.

COMMISSIONER

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