USING THE SMALL BUSINESS FAIR DISMISSAL CODE

Fair Work Australia (FWA) has recently warned against the strict reliance on the Small Business Fair Dismissal Code and Checklist indicating that it is not an exhaustive checklist of procedural obligations and considerations required to be undertaken by an employer. In the case of Mr N v The Bakery, the owner of a bakery relied on the checklist to dismiss an employee (Mr N) who had intentionally completed his time sheets incorrectly, amounting to theft, and therefore, serious misconduct justifying ‘summary dismissal’. Relying on the information in the Code, the employer held a meeting with the employee informing him of the allegations and video evidence against him and dismissed him without notice. Senior Deputy President O’Callaghan considered that the employer should have offered for the employee to have a support person with him at the meeting, particularly given the employee’s language limitations and where termination was being considered.

In addition, SDP O’Callaghan said the employee was only given a limited opportunity to respond to the allegations as the employer had already decided that the employee’s employment would be terminated. It was found that the termination was harsh but was neither unjust nor unreasonable. Compensation was awarded to the employee but was reduced due to his conduct contributing to his termination.

KEY POINTS: Small businesses are required to comply with the Code and complete the Checklist when dismissing an employee who has been employed for more than 12 months. This includes offering for a support person to be present with the employee; putting allegations to the employee; allowing time to respond; providing an opportunity to improve performance if relevant and informing the employee that failure to improve performance or further misconduct will result in termination of their employment. By doing this correctly and having evidence to support the procedure and the Checklist, the small business employer should have a defence to an unfair dismissal claim by the employee. In saying this, it is vital that the reason for the warning or termination is valid, particularly where summary dismissal is being considered. If you are unsure on the procedure required, seek legal advice before meeting with the employee.