Redundancies and unfair dismissal by small business employers

Redundancies and unfair dismissals by small business employers

The Small Business Fair Dismissal Code does not apply to employers which terminate the employment of an employee on the grounds of redundancy; Iannello v Motor Solutions Australia Pty Ltd [2010] FWA 3125.

Furthermore small business employers are not obliged to pay statutory redundancy; sec 121(1)(b), Fair Work Act 209.

Consequently, where a small business employer raises the jurisdictional defence of genuine redundancy to an unfair dismissal claim, the question to be determined is whether the employer can demonstrate the elements of that defence including that the employer complied with any obligation in a modern award or enterprise agreement to consult about the redundancy.

For an example where this defence was put up by a small business employer and it failed, see Drinkwater v The Trustee for the Joel and Bec Scott Family Trust and the Trustee for the Mark and Natalie Ramsay Family Trust T/A Frankies at Forde (2020) FWC 4769 delivered 6 October 2020per- Dean DP