See Fair Work Act 2009 s.385, s.388(1) and the Small Business Fair Dismissal Code
In the case of dismissal by a small business employer, a person has not been unfairly dismissed if the Fair Work Commission is satisfied that the dismissal was consistent with the Small Business Fair Dismissal Code (the Code).
A person's dismissal is consistent with the Code if:
An employer is a small business employer if it employs fewer than 15 employees (by head count) at the relevant time. All employees employed by the employer at the time (including the dismissed employee, any other employees dismissed at the same time and those employed by associated entities), are to be counted. Casual employees are not counted, unless they are employed on a regular and systematic basis.
The Code states that:
It is fair to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal.[1]
The Code defines serious misconduct as including 'theft, fraud, violence and serious breaches of occupational health and safety procedures'.[2]
The Commission does not have to make a finding, on the evidence, whether the conduct occurred.[3] The Commission needs to find whether the employer had a reasonable belief that the conduct of the employee was serious enough to warrant immediate dismissal.[4] It is not necessary for the Commission to determine whether the employer was correct in the belief that it held.[5]
For an employer to believe on reasonable grounds that the conduct of the employee was serious enough to justify immediate dismissal, the employer must establish that they did in fact hold the belief that:
The employer must establish that they had reasonable grounds to hold the belief, which could be established by providing evidence of inquiries or investigations the employer undertook to establish their belief.[7]
In non-summary dismissal cases, the employee must be warned that if there is no improvement to their conduct or capacity, they could be dismissed.[8]
The employee must be given a reason as to why their employment is at risk and the reason must be a valid reason based on their conduct or capacity to do the job. [9]
The employer must give the employee an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.[10]
During discussions between the employer and employee about matters where dismissal is possible, the employer must allow the employee to have another person present to assist them. However, this person cannot be a lawyer acting in a professional capacity.[11]
If an employee claims to the Commission that they have been unfairly dismissed, the employer will have to prove that they have complied with the Code.[12]
[1] Small Business Fair Dismissal Code.
[2] ibid.
[3] Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe [2010] FWA 7891 (Bartel DP, 14 October 2010) at para. 60, [(2010) 204 IR 39]; cited with approval in Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 (Watson VP, Richards SDP, Cloghan C, 21 March 2012) at paras 27, 29, [(2012) 219 IR 128]; Steri-Flow Filtration (Aust) Pty Ltd v Erskine [2013] FWCFB 1943 (Acton SDP, Smith DP, Roe C, 24 April 2013).
[4] ibid.
[5] Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 (Watson VP, Richards SDP, Cloghan C, 21 March 2012) at para. 29, [(2012) 219 IR 128];.
[6] Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922 (McCarthy DP, 21 June 2011) at para. 8; cited with approval in Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 (Watson VP, Richards SDP, Cloghan C, 21 March 2012) at paras 28–29, [(2012) 219 IR 128].
[7] Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922 (McCarthy DP, 21 June 2011) at para. 9; cited with approval in Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 (Watson VP, Richards SDP, Cloghan C, 21 March 2012) at paras 28–29, [(2012) 219 IR 128].
[8] Small Business Fair Dismissal Code.
[9] ibid.
[10] ibid.
[11] ibid.
[12] ibid.