Fair Dismissal Code and unfair dismissal

This extract from a recent decuision of the Fair Work Commssion sets out in apractical mannner the application of the provisions of the Small Business Fair Dismissal Code.

“Was the dismisal consistent with the Small Business Fair Dismissal Code?

  • Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:


  • immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and


  • the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.


  • The Respondent was a small business employer within the meaning of s.23 of the FW Act at the relevant time, having fewer than 15 employees including casual employees employed on a regular and systematic basis.


  • It is therefore necessary to consider whether the Respondent complied with the Small Business Fair Dismissal Code in relation to the dismissal, notwithstanding that the Respondent has in any case made this jurisdictional objection.


Did the Respondent comply with the Small Business Fair Dismissal Code in relation to the dismissal?


  • While the Applicant disputes the validity of the termination, it was not in dispute between the parties that the termination was due to poor The Small Business Fair Dismissal Code (the Code) provides, with respect to terminations other than summary terminations for serious misconduct, as follows:


“the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.


The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.


The small business employer must provide the employee with 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.


  • From the paragraphs above it is clear that there are a number of considerations that the FWC must undertake in determining whether the Respondent has complied with the Code. Firstly, the Applicant must have been given a valid reason, based on his conduct or capacity, that he was at risk of being Further, the Respondent must have warned the Applicant verbally, or preferably in writing that he was at risk of being dismissed if he did not improve. The Applicant must also have been given an opportunity to respond to the warning and been given a reasonable chance to rectify the problem…….





  • It is clear on the evidence before me that the Respondent has met the requirements of the Code in that it has warned the Applicant about his performance issues both verbally and in writing and has advised him in writing that he could face termination if he did not improve. Further, it has given him an opportunity to improve. While I note that this opportunity only extended for some five weeks after he was warned that termination was a possibility, it is nevertheless the case that he had been offered some significant time prior to this to It is not unusual, nor do I think improper, for performance warnings to commence without necessarily carrying the threat of termination. The hope is that the employee will improve and do so without the distress created by the prospect of dismissal. However, when improvement is not forthcoming, the employer then needs to advise the employee that the matter is serious and there could be consequences including dismissal in an attempt to secure the desired performance outcome. I find that this is what the Respondent has done. It has raised the prospect of termination to make it clear that the Applicant should treat the concerns seriously. Given the history of its attempts to secure improved performance stretched back many months, and given the particular circumstances of the concerns, I do not find it improper that a period of five or so weeks was provided by the Respondent once termination was raised as a possibility.


  • The only other issue that requires examination for compliance with the Code is whether the Respondent had a valid reason to embark on the performance counselling process. I find that on balance of probability that the Respondent did have a valid reason. The witnesses for the Respondent were, in my assessment, honest and forthright and it appears that they had a genuine reason to be concerned with the Applicant’s communication and performance. Their evidence was that there were communication problems experienced with the Applicant that had gone on for some time and I accept that this is the case. The Applicant himself conceded that he had not always responded to messages from Ms Lewis, albeit that he did deign to answer those that he deemed He further conceded that he had not always advised Ms Lewis in the way he had been instructed to do when he failed to complete a task assigned to him. This, in Ms Lewis’ evidence, created serious issues for the Respondent as some of those tasks were time sensitive.


  • I am also not persuaded that the tasks given to the Applicant, based on the evidence provided, were such that he should have continually experienced difficulties in completing them and certainly not with the regularity that he himself conceded. This is not to suggest that this was always the It would appear that on some occasions, given the size of the Respondent’s property, that there were tasks that might have taken longer than the 3.2 hours per day worked by the Applicant. But the Respondent had made it clear that failing to complete a task was not necessarily a problem, provided that the Applicant advised his manager that the task was not completed – something I accept he repeatedly failed to do. In summary, I accept that the Respondent had a valid reason, based on the Applicant’s repeated failure to complete allocated tasks, and his further failure to properly advise his manager that this was the case, to commence a performance management program with him.


  • As I have found above, the Respondent had a valid reason to warn the Applicant that he risked dismissal, it warned him in writing of this and advised him that he could face termination of employment if he did not remedy the issues raised with I further found that the




Applicant was given an opportunity to remedy those issues, in the first instance without a warning about possible termination and then again with that warning when no improvement was displayed. As such, I am satisfied that the Respondent, being a small business as defined in the Act has complied with the Small Business Fair Dismissal Code.


  • The Respondent’s jurisdictional objection is therefore upheld and an order dismissing the Applicant’s application for an unfair dismissal remedy will issue.”



Boeser v Equestrian Western Australia Incorporated (2024) FWC 376 delivered 12 February 2024 per O’Keeffe DP