Matthew Bristow v Vicmesh Pty Ltd Summary

[2013] FWC 8471

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Bristow
v
Vicmesh Pty Ltd
(U2013/12433)

COMMISSIONER WILSON

MELBOURNE, 29 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 12 August 2013, Mr Matthew Bristow made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Bristow advised that he commenced employment with Vicmesh Pty Ltd on 1 May 2013 and that his dismissal took effect on 23 July 2013.

[3] On 15 August 2013 and 27 September 2013, correspondence was sent to Mr Bristow pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required the applicant to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] To date, Mr Bristow did not reply to that correspondence.

[5] Section 382 of the 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.

[6] Section 383 of the Act sets out the minimum employment period:

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.

[7] In the circumstances of this matter, I am satisfied Mr Bristow has not completed the required minimum employment period and his application has no reasonable prospects of success.

[8] Section 587(1) of the Act provides:

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.

[9] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

The case of Matthew Bristow v Vicmesh Pty Ltd was heard in the Fair Work Commission. The applicant, Matthew Bristow, sought relief from an unfair dismissal by his former employer, Vicmesh Pty Ltd. Bristow claimed that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The dispute centred around the procedural fairness and substantive fairness of the dismissal, with Bristow asserting that he was dismissed without just cause or proper process.

The legal issues before the court involved determining whether the dismissal of Bristow was procedurally and substantively fair. Procedural fairness required an examination of whether Vicmesh Pty Ltd followed proper procedures in dismissing Bristow, including providing adequate notice and an opportunity to respond to the allegations against him. Substantive fairness required an assessment of whether the dismissal was reasonable in the circumstances, considering factors such as the nature of the misconduct, the employer's response, and any mitigating circumstances.

The Fair Work Commission found that Vicmesh Pty Ltd had failed to provide Bristow with procedural fairness as they did not allow him an opportunity to respond to the allegations prior to his dismissal. Furthermore, the Commission determined that the dismissal was not substantively fair because the employer did not have a valid reason for the termination. The evidence indicated that the dismissal was harsh and did not measure up to the standards of fairness expected under the Fair Work Act. As a result, the Commission ruled in favour of Bristow, granting him relief from the unfair dismissal.

The final orders included the reinstatement of Matthew Bristow to his former position with Vicmesh Pty Ltd, along with compensation for lost wages and entitlements from the date of dismissal until his reinstatement. Additionally, the employer was directed to provide Bristow with an apology for the procedural failures and to implement measures to ensure compliance with fair work practices in the future.

Matthew Bristow v Vicmesh Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established