Mathew Brever v Envirocare Systems Pty Ltd

[2013] FWC 8290

[2013] FWC 8290

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mathew Brever
v
Envirocare Systems Pty Ltd
(U2013/11840)

DEPUTY PRESIDENT MCCARTHY PERTH, 23 OCTOBER 2013

Application for relief from unfair dismissal.

[1] Mr Mathew Brever (the Applicant) lodged an application for unfair dismissal remedy claiming that he was dismissed from his employment with Envirocare Systems. An Employer’s Response to the application was lodged identifying the employer as Envirocare Systems Pty Ltd (the Respondent).

[2] The Employer’s Response claimed that the Applicant was dismissed on the grounds of poor performance despite counselling and formal warnings and failing to follow instructions. The details supporting that contention were attached outlining the history of the Applicant’s employment including notes of meetings with him regarding his performance.

[3] The Employer’s Response also objected to the application on the grounds that the Respondent was a small business employer immediately before the dismissal of the Applicant and had complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[4] I wrote to the Respondent and provided a copy of the Small Business Fair Dismissal Code Checklist. The Respondent completed that Checklist and returned it to me. The Checklist declared that the Employer employed under 15 full-time equivalent employees. It also declared that the Applicant was dismissed because of his unsatisfactory conduct performance or capacity to do the job. The Respondent states that they provided the Applicant with two months to improve his performance and that he did not subsequently improve. The Respondent also provided documentation which included minutes of meetings on 3 April 2013 and 15 April 2013 and letters detailing concerns about the Applicant's performance and conduct on 14 May 2013 and 9 July 2013.

[5] I wrote to the Applicant and provided him with a copy of the Small Business Fair Dismissal Code Checklist that the Employer had provided. I requested that the Applicant advise if he disputed the content of that Checklist. I also requested that if he did dispute that Checklist he should provide the grounds as to why he disputed it and any other evidence or documentary material in support of those grounds. I requested that the Applicant provide that information and advice by close of business 19 October 2013.

[6] As at today's date there has been no communication or information received from the Applicant.

[7] I find that the Applicant's dismissal was consistent with Small Business Fair Dismissal Code. I am therefore satisfied that the Applicant was not unfairly dismissed. An order for the dismissal of the application is therefore issued.

DEPUTY PRESIDENT

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