How to apply the Small Business Fair Dismissal Code

This extract from a recent decision of the Fair Work Commission sets out how to apply the Small Business Fair Dismissal Code to an unfair dismissal case.

“The Code
[16] The Code provides as follows:
“The Code
Summary Dismissal

Other Dismissal
In other cases, 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.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the
employee can have another person present to assist. However, the other person cannot
be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the
Code if the employee makes a claim for unfair dismissal to Fair Work Australia,
including evidence that a warning has been given (except in cases of summary
dismissal). Evidence may include a completed checklist, copies of written warning(s),
a statement of termination or signed witness statements.”
[17] Given the respondent is a small business employer and the dismissal was effected with
a payment in lieu of notice, the “Other dismissal” provisions of the Code are relevant.
Code-related considerations in this case
[18] Given that the respondent contends the dismissal was Code-compliant, I turn to an
overview of its case on the objection in such respects – which is drawn from its outline of
closing submissions. The respondent submitted that it had not only met but exceeded the
requirements of the Code relating to “Other dismissals”, in “navigating a confusing and
unsettled area of law”.
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[19] The respondent advanced its submissions by reference to the decision of Asbury DP (as
she then was) in Brittain v Teewah Power Co [2021] FWC 5451 (“Brittain”). That decision
contains the following passages (references not reproduced):
“[63] The requirements in the Code that there be a valid reason for dismissal and that the
employee is informed of that reason before dismissal also imply that any response
provided by the employee is required to be considered by the employer before deciding
to dismiss the employee. Where an employer cannot provide evidence that the response
was considered, there may be difficulty in establishing the validity of a reason for
dismissal particularly where the response provides an explanation for the conduct or
capacity which led to the dismissal. This is also consistent with the provisions of the
Code in relation to warnings which state that any response to a warning made by the
employee should be a matter to which the employer has regard.
[64] I proceed on the basis that the provisions of the Code relating to “Other Dismissal”
require that:
1. Before dismissing an employee for reasons of conduct or capacity (other than
those justifying summary dismissal) the employer must give the employee a
reason why he or she is at risk of being dismissed.
2. The reason must be a valid reason (in the sense that it is sound, defensible and
well founded and justifies dismissal) based on the employee’s conduct or
capacity.
3. Conduct includes an omission and capacity is the employee’s ability to do the
job as required by the employer and also includes the employee’s ability to do
the work he or she was employed to do.
4. The employer must give the employee an opportunity to respond to the reason
for dismissal before dismissing the employee.
5. The requirement that there be a valid reason for dismissal means that some
consideration should be given to the response the employee provides. This will
generally be required when the Commission is assessing whether the reason for
dismissal was valid.
6. The employee must have been warned that he or she is at risk of being
dismissed either for similar conduct or capacity issues or that the issue that is the
subject of the warning has generally placed the employee’s employment at risk
and that any repetition or further conduct or capacity issues will result in
dismissal.
7. If the employee has previously engaged in conduct that has placed his or her
employment at risk and has been warned in relation to it there is no requirement
that a further warning be given and it will be sufficient if the employee is notified
that the employer believes that the same conduct or further conduct that places
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the employee’s employment at risk has occurred and gives the employee an
opportunity to respond before dismissing the employee.
8. The employee must have been given a reasonable opportunity to improve his
or her performance prior to the dismissal being effected which may include the
employer providing additional training and ensuring that the employee knows
the employer’s job expectations.
9. An employee may request to have another person present to assist in
discussions in circumstances where dismissal is possible provided that person is
not a lawyer acting in a professional capacity. The employer is not required to
offer a support person.
[65] If a dismissal was consistent with the Code then the dismissal is not unfair and does
not fall to be considered against the criteria in s. 387 of the Act. If the Commission is
not satisfied that the dismissal was consistent with the Code, the Commission must then
consider whether the dismissal was unfair because it was harsh, unjust or unreasonable
on the basis of the criteria in s.387 of the Act …”.
[20] The respondent made reference in its closing submissions to the descriptions of the
operation of the Code as set out in Brittain at [64], referring to those matters as “Checklist”
items numbered 1-9. To avoid doubt, the references to Checklist items in the respondent’s
submissions are not references to the checklist questions in the Small Business Fair Dismissal
Code Checklist tool that is associated with the Code. Rather, what the respondent described as
Checklist items replicated the matters or descriptions set out in Brittain.
[21] While I will return later in the decision to the respondent’s submissions concerning the
operation of the Code and the evidence in the case, I should note the following. Among other
documents, the applicant provided a statutory declaration in support of his case in which he
said, for example, that the certain impugned emailed comments to Ms Ottowa (“Conny sky is
the limit for your greednes [sic]” and “You are also highly arrogant and you don’t respect
people”) had, for example, been taken “completely out of context” in circumstances where there
had been a payments issue and the comments had been made out of “frustration” rather than
being said or meant in an aggressive or disrespectful way. The applicant’s closing remarks in
the statutory declaration emphasised his long period of employment with the company as a
trusted employee; and that he had not been given “a real and fair opportunity to improve our
working relationship”, for example, by way of a performance improvement plan.
[22] The applicant’s oral closing submissions were (at PN1235):
“… I don’t have too much to say, basically maybe that I made a mistake. My boss was
right, employees have no right in Australia2
. That’s it. Thank you very much.”
[23] Moreover, when asked by me whether there was anything that he wanted to say in reply
to the respondent’s closing submissions, the applicant indicated (at PN1267) that there was
nothing he wanted to say in reply.
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[24] It is apposite to note that, on 4 May 2023, the applicant filed and served a further written
submission attaching a photograph of himself. In deference to the fact the applicant was selfrepresenting, I have considered the applicant’s further submission for the purposes of this
decision even though it was filed and served after the decision was already reserved. Due to its
brevity, the submission made by the applicant is reproduced in full (as written):
“Dear Associate.
Although Commissioner was asking me for final words and im thankful for that after
the trial i couldn’t say anything.
The reason for that was that i was really angry on myself due to be unable say what i
want, too many new challenges in once.
I don’t really have much negative thoughts about the respondent I already past most of
this and definitely not on her lawyers in the end of the day it’s their job I get it.
However, need to clarify something,
This dismissal was first dismissal in my whole life since i started work as a adult men,
in my country I was working only in one company 13 years .
Not goanna say unfair, because its too mild word and I’m never pompously rude, I might
be sarcastic but not rude unless I don’t fully understand meaning of used by me words.
Communication between me and respondent.
I didn’t receive even one email before she fire me where Conny Ottawa directly respond
to me.
That I’m offending her or her husband,
touching her private life,
commenting who is the boss in her relationship with Robbin [Ottowa]
I also don’t complain behind boss back that I don’t earn in their company enough money
i asking him if he has time to talk and I’m telling him about this.
I’m straight forward person,
When is a problem or I’m not ok with something I deal with this almost instantly.
Confabulation about no spine boss.
It would the last thing what I would say about him.
He HAS bigger spine then 2 normal men’s, when I had conversation with him about
money and employees without rights in Australia,
although he knew that I could easy with one hand snap his spine he said that without
any fear, he has courage and I never took this from him.
HR workers.
When I left in 2008 my country there wasn’t such a thing like disciplinary meeting with
HR, what we had back then was public, government inspectors but they usually was
shooting down company,
boss was the person who was dealing with any issue related to the worker and although
I never been fired before through all those years I’ve seen few people who were fired
and remember that before boss ask them to talk about their problem they knew weeks
or even months before this happened
not 37 days before,
and all others workers around them .
When I had my first meeting with Kristy M [Kirsty Muir] I actually thought that she is
independent, from government I even asked her if she has a acces to all emails because
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I thought that my boss is not showing her everything I never said that because I felt like
idiot.
I apologise for such late time when I sending this but insomnia is new standard for me
I also attached one photo of me before all this mess, I remember Commissioner on the
beginning asked me if I got any injury in my ex company,
photo explain grounds of my unfair dismissal application.
Thank you.”
[25] As noted earlier, the respondent’s submissions referenced matters set out in subparagraphs 1-9 of paragraph [64] of Brittain. As to the first matter addressed in the respondent’s
submissions, related to giving the employee a reason why he or she is at risk of being dismissed,
the respondent submitted that the evidence of Ms Ottowa and Ms Hargreaves shows that “before
dismissing the Applicant for his conduct, the Respondent gave the Applicant a reason as to why
he was at risk of being dismissed on multiple occasions including in writing on 23 November
2022 in an invitation to a disciplinary meeting and again verbally on 30 November 2023 during
the disciplinary meeting.”
[26] I accept the respondent’s submissions concerning the first matter. The evidence shows
that the respondent gave the applicant a reason or reasons why he was at risk of being dismissed.
[27] As to the second matter, related to a valid reason based on the employee’s conduct or
capacity, the respondent submitted that the evidence of Ms Ottowa shows there was a valid
reason for the applicant’s dismissal. The respondent submitted, first, that: (a) the applicant
persistently communicated with Ms Ottowa and others in the respondent’s business in a rude,
disrespectful, and entirely unprofessional manner; and (b) the applicant frequently failed to
notify the respondent of his absences from work as well as deceptively advising Ms Ottowa
that he was performing work when he had not been. Second, Mr Torres’ evidence shows that:
(a) the applicant was not present at the site performing the work that he was being paid to do;
and (b) when at work, the applicant was constantly talking poorly about either the business or
Ms Ottowa, and Mr Torres had to leave the workplace to get away from (what Mr Torres
characterised in an email to the respondent as) the applicant’s “incessant berating” about certain
matters concerning the business and the Ottowas personally. These matters, the respondent’s
submissions continued, went “to the heart of the employment relationship” in that: (a) the
applicant simply was not performing work in exchange for wages; and (b) the applicant was
not speaking to, or about, his employer in a professional and courteous manner. The respondent
submitted that it was important to highlight that Ms Ottowa’s evidence shows that, throughout
2022 and even as early as January 2021, the respondent regularly directed the applicant to
communicate in a civil and professional manner, and to follow its policy by advising of
absences from work; yet, despite these regular directions from the respondent, the applicant
continued to engage in same conduct.
[28] In its written outline, the respondent submitted that the evidence was that applicant did
not deny the allegation concerning the-then most recent unauthorised absence from the
worksite; rather, the applicant repeatedly asked to be provided evidence of the allegations. The
submissions continued:
“30. The respondent decided that on balance it believed the allegations were substantiated
(or proven), give the Applicant’s history of leaving the workplace without authorisation
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and his rude and disrespectful behaviour towards the Respondent [Ms Ottowa] to date.
The fact that the Applicant did not deny the allegations weighed in favour of them being
substantiated (or proven).”
[29] I accept the respondent’s submissions around the applicant’s unauthorised and/or
unreported failure to attend for work on various occasions, including the-then most recent
absence preceding the dismissal. In and of itself, the attendance issues would ground a valid
reason for dismissal. Specifically, because this was the last absence from work which was, in
effect, one of the determining matters for the respondent, it is necessary to make a finding
concerning this contested matter. I find that the applicant did absent himself from work on 21
November 2022. I find, on the balance of probabilities, including having regard to the evidence
of both the applicant and Mr Torres about what unfolded that day, that the applicant absented
himself from work in an unauthorised way. In reaching that conclusion, I have considered those
parts of the applicant’s case which contended that Mr Torres had engaged in retribution-type
reporting to the respondent. I also accept that the tenor and contents of some of the applicant’s
communications to his manager, Ms Ottowa, were quite inappropriate when read objectively –
notwithstanding my consideration of the applicant’s case which referenced his frustration in the
emailed comments. The tenor and contents of some of the communications sent by the applicant
to Ms Ottowa would again ground a valid reason for dismissal.
[30] As to the third matter, related to conduct including an omission, the respondent
submitted that Ms Ottowa’s evidence shows that the valid reason also relates to the applicant’s
omission in failing to notify the respondent of his intended absence from work on 21 November
2022 and, earlier, on 29 September 2022. I accept the respondent’s submissions in this regard.
[31] As to the fourth matter, related to giving the employee an opportunity to respond to the
reason for dismissal before dismissal, I accept the respondent’s submission that Ms Hargreaves’
evidence shows that the applicant was given an opportunity to respond to the reason for
dismissal during a meeting on 30 November 2022.
[32] As to the fifth matter, related to consideration being given to the response the employee
provides, I accept the respondent’s submission that Ms Hargreaves’ evidence shows that it was
the applicant who chose not to relevantly respond to the reason for dismissal during the meeting
on 30 November 2022 – despite having the opportunity to respond.
[33] As to the sixth matter, related to prior warning/s, the respondent submitted – being
submissions I accept – that the evidence of Mr Ottowa and Ms Ottowa shows that the applicant
was warned that his employment was at risk of being terminated. The evidence of the
correspondence speaks for itself in such respects. Added to the documentary record of formal
warnings, Ms Ottowa’s evidence shows the respondent had periodically warned the applicant
over the course of 2022, and as early as January 2021, that his conduct was unacceptable and/or
needed improvement.
[34] The seventh matter is related to the following: “If the employee has previously engaged
in conduct that has placed his or her employment at risk and has been warned in relation to it
there is no requirement that a further warning be given and it will be sufficient if the employee
is notified that the employer believes that the same conduct or further conduct that places the
employee’s employment at risk has occurred and gives the employee an opportunity to respond
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before dismissing the employee.” The respondent submitted that the evidence in its case,
particularly the evidence of Ms Ottowa, shows that: the applicant was continuously warned,
either verbally or in writing, throughout 2022 that his employment was at risk of being
terminated due to his persistent misconduct; the applicant was notified on 23 November 2022
that he had yet again engaged in the same conduct, which placed his employment at risk; and
the respondent gave the applicant the opportunity to respond on 30 November 2022 to that
conduct prior to dismissing him. The respondent further submitted that, as a small business
employer, “it went out of its way” to afford the applicant procedural fairness – and so much so
as to be in a way that exceeded the Code’s requirements. I accept the respondent’s submissions
in such respects, notwithstanding the applicant’s contentions to the contrary.
[35] As to the eighth matter, related to having been given a reasonable opportunity to
improve performance prior to the dismissal, I accept the respondent’s submission that Ms
Ottowa’s evidence shows that she communicated the employer’s expectations and the applicant
was given an opportunity to improve his performance over the course of 2022 and, more
specifically, after the first and second written warnings.
[36] Last, as to the ninth matter, related to an employee having another person present to
assist in relevant discussions, the applicant was provided the opportunity to have a support
person present at all meetings (and chose to have a support person present at some meetings).
Conclusion
[37] On a consideration of the matters advanced by way of evidence and submissions, I am
satisfied that the dismissal was Code-complaint. As such, it is unnecessary to consider the other
elements as to an unfair dismissal. The application is dismissed. An order in such respects will
issue in conjunction with these reasons.
[38] The proceedings are concluded.”
Bednarski v Summit Coatings Pty Ltd [2023] FWC 1288 delivered 9 June 2023 per McKenna C