Dismissals by small business; not as easy as you think

The Small Business Fair Dismissal Code was declared by the Minister for
Employment and Workplace Relations on 24 June 2009. It relevantly provides:
“Summary Dismissal

It is fair for an employer 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. Serious
misconduct includes theft, fraud, violence and serious breaches of
occupational health and safety procedures. For a dismissal to be deemed
fair it is sufficient, though not essential, that an allegation of theft, fraud or
violence be reported to the police. Of course, the employer must have
reasonable grounds for making the report.”
In John Pinawin T/A RoseVi.Hair.Face.Body v Domingo (2012) FWAFB 1359
delivered, the Full Bench set out a two-step test to determine if an employer had
complied with the summary dismissal aspect of the Code:
“ Thereare two steps in the process of determining whether this aspect of
the Small Business Fair Dismissal Code is satisfied. First, there needs to be a
consideration whether, at the time of dismissal, the employer held a belief
that the employee’s conduct was sufficiently serious to justify immediate
dismissal. Secondly it is necessary to consider whether that belief was based
on reasonable grounds. The second element incorporates the concept that
the employer has carried out a reasonable investigation into the matter. It
is not necessary to determine whether the employer was correct in the
belief that it held.”
Accordingly, an employer’s belief cannot be reasonably based if the employer has
not conducted and appropriate enquiry.
Deeth v Milly Hill Pty Ltd (2015) FWC 6422 delivered 28 October 2015 per Hamberger DP