This extract from a recent decision of the Fair Work Commission in an unfair dismissal case deals with several issues which apply under the Small Business Fair Dismissal Code.
“Small Business Fair Dismissal Code
[27] As I have determined earlier in this decision, the Respondent is a small business for
the purposes of the Act.
[28] In the case of Ryman v Thrash,3 the Full Bench of the Commission outlined the relevant
test in determining circumstances in which an employer may summarily dismiss an employee
from a small business:
“In summary, drawing on the conclusions stated above and the ratio in Pinawin, we
consider that the “Summary dismissal” section of the Code operates in the following
way:
If a small business employer has dismissed an employee without notice – that is,
with immediate effect – on the ground that the employee has committed serious
misconduct that falls within the definition in reg.1.07, then it is necessary for the
Commission to consider whether the dismissal was consistent with the
“Summary dismissal” section of the Code. All other types of dismissals by small
business employers are to be considered under the “Other dismissal” section of
the Code.
In assessing whether the “Summary dismissal” section of the Code was
complied with, it is necessary to determine first whether the employer genuinely
held a belief that the employee’s conduct was sufficiently serious to justify
immediate dismissal, and second whether the employer’s belief was, objectively
speaking, based on reasonable grounds. Whether the employer has carried out a
reasonable investigation into the matter will be relevant to the second element.”
[2026] FWC 2336
5
[29] For the SBFDC to apply to the termination of Mr Robertson’s employment from the
Respondent, the Respondent would need to have held a reasonable belief that Mr Robertson had
engaged in serious misconduct and that belief must be founded on reasonable grounds. To make
this argument, the Respondent needs to outline the reasonable grounds it relied upon to form
the reasonable belief that Mr Robertson had engaged in serious misconduct warranting
summary dismissal.
[30] For the reasons outlined below, I have determined that the SBFDC was not complied
with in this instance. The Respondent did not make detailed submissions as to what serious
misconduct Mr Robertson had allegedly been involved in during his employment with
the Respondent. The Respondent also failed to provide information on the reasonable grounds
it relied upon to come to its conclusion and then to summarily dismiss Mr Robertson from his
employment.
[31] Simply, the Respondent has failed to provide an adequate explanation as to what serious
misconduct Mr Robertson was guilty of, so I am unable to ascertain whether there was a
reasonable belief or what grounds, and whether those grounds were reasonable, the belief was
made on. As the Respondent has not supported its case in this regard, I am satisfied that the
SBFDC was not complied with.”
Robertson v Stay In The Fight Boxing Australia Pty Ltd [2026] FWC 2336 delivered 24 June 2026 per Schneider C