Oops; a slip of the tongue or old cobblers

In Christie v Kennedys Personal Training Pty Ltd (2015) FWC 7274 delivered on 23 October 2015 Roe C of the Fair Work Commission appears to suggest that the Small Business Fair Dismissal Code does not apply to a dismissal which is based upon the employee’s poor performance.
In determining that an employee’s dismissal was unfair he said “I am satisfied that the small business code does not apply given that the termination related to performance (my emphasis) and I am not satisfied that Ms Christie was warned that a failure to improve her performance could result in dismissal. In the alternative, if there was a warning then I am satisfied that Ms Christie did not have a reasonable opportunity to improve following any warning as required by the small business code”.
In my opinion this is simply wrong. Now it is true that the code does not expressly mention performance. It says in part “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. “
In my opinion it beggers belief that the words “conduct or capacity” in the code can be interpreted so as to exclude “performance” which it is to be assumed is the Commissioner’s reasoning for his amazing statement, since the decision does not contain any authority for the proposition or an explanation for it either.
The proposition would I suggest would also stun the authors of the code since the statutory checklist (see https://www.fwc.gov.au/about-us/legislation-regulations/small-business-fair-dismissal-code) which accompanies it reads in part as follows
“8. Did you dismiss the employee because of the employee’s unsatisfactory conduct, performance or capacity to do the job?
 Yes
 No
If Yes

a. Did you clearly warn the employee (either verbally or in writing) that the employee was not doing the job properly and would have to improve his or her conduct or performance, or otherwise be dismissed?

b. Did you provide the employee with a reasonable amount of time to improve his or her performance or conduct?
If yes, how much time was given?”

 