Mathew Brever v Envirocare Systems Pty Ltd Summary

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved Mathew Brever, who sought relief from an unfair dismissal against Envirocare Systems Pty Ltd. Mr Brever claimed that he had been dismissed without just cause or excuse, contrary to the provisions of the Fair Work Act 2009. Envirocare Systems Pty Ltd, on the other hand, argued that the dismissal was fair and in accordance with the company's policies and the applicable law. The case was heard in the Fair Work Commission, which is the tribunal responsible for resolving disputes related to employment and workplace relations in Australia.

The primary legal issues before the commission were whether Mr Brever's dismissal was procedurally fair and whether it was substantively fair. Procedural fairness involved examining whether Mr Brever had been given adequate notice of the dismissal and an opportunity to respond to the allegations against him. Substantive fairness, on the other hand, involved determining whether the dismissal was justified based on the reasons provided by the employer. The commission had to assess whether Envirocare Systems Pty Ltd had acted reasonably and fairly in dismissing Mr Brever, taking into account the nature of the misconduct and the circumstances surrounding the dismissal.

In its decision, the commission found that Mr Brever's dismissal was procedurally unfair as he had not been given adequate notice of the dismissal and an opportunity to respond to the allegations. The commission held that Envirocare Systems Pty Ltd had failed to follow its own policies and procedures in handling the dismissal. Regarding substantive fairness, the commission found that the dismissal was justified based on the reasons provided by the employer. The company had established that Mr Brever had engaged in misconduct that warranted termination of employment. However, the commission noted that the procedural unfairness of the dismissal outweighed the substantive fairness, leading to the conclusion that the dismissal was unfair overall.

The Fair Work Commission ordered Envirocare Systems Pty Ltd to reinstate Mr Brever to his former position and to pay him compensation for the loss of wages and other entitlements. The company was also required to apologise to Mr Brever for the procedural unfairness of the dismissal. The decision highlights the importance of following proper procedures when dismissing an employee, even if the substantive reasons for the dismissal are valid. Employers must ensure that they provide adequate notice and an opportunity for the employee to respond to the allegations before taking any disciplinary action.

Mathew Brever v Envirocare Systems Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established