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

[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

Printed by authority of the Commonwealth Government Printer

1 PR721666.

In the matter of Zoe Wehr v Cannridgepty Ltd Trust T/A Albany City Motors, the Fair Work Commission was tasked with determining whether the dismissal of Ms Wehr by Albany City Motors was unfair. Ms Wehr had been employed by the company in a sales and marketing role. She was dismissed on the basis that she had breached the employer's policies by engaging in conduct that constituted bullying and harassment towards a colleague. Ms Wehr contested the dismissal, arguing that it was harsh, unjust, or unreasonable, and sought a remedy under the Fair Work Act.

The primary legal issues before the Commission were whether the dismissal was justified under the provisions of section 382 of the Fair Work Act and whether there were mitigating factors that could render the dismissal unfair. The Commission needed to assess whether Ms Wehr's actions warranted the termination of her employment and whether the employer had followed a fair process in reaching its decision. Furthermore, the Commission considered whether there were any mitigating factors that could have influenced the fairness of the dismissal.

The Commission found that while Ms Wehr's conduct did constitute bullying and harassment, the employer had not adequately addressed the issue prior to the dismissal. The employer had failed to follow its own policies and procedures for handling such complaints, which led the Commission to conclude that the dismissal was unfair. The employer's lack of a formal investigation and failure to provide Ms Wehr with an opportunity to respond to the allegations further contributed to this finding. As a result, the Commission ordered that Ms Wehr be reinstated to her previous position and that she be compensated for the loss of wages and entitlements suffered as a result of the unfair dismissal.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established