Small business fair dismissal code and serious misconduct

The last passages from this unfair dismissal decision of the Fair Work Commission reveal the approach taken to determining serious misconduct under the Small Business Fair Dismissal Code.


[26] To establish that the Respondent summarily dismissed the Applicant in accordance with the Code, the Respondent must demonstrate that the Applicant was dismissed without notice or warning and that the Respondent believed on reasonable grounds that the conduct was sufficiently serious to justify immediate dismissal.

[27] The Applicant was not provided any warning regarding the termination. The Respondent had formed the view reasonably that the Applicant in his role as the head baker and the only employee that utilised the workspace and the baking equipment was responsible for the requisite standard of hygiene and complying with the food and health and safety standards.

[28] The closure of the business by the Brisbane City Council was a significant indication that the café and more particularly the kitchen had failed to meet the requirements of the health and safety standards. This was dramatic and tangible action by the Council and the Respondent held the baker responsible for the key breaches.

[29] The Respondent formed the view that the Applicant, by not operating the kitchen to the required health and safety standard, was seriously neglectful and his actions or inaction regarding hygiene warranted immediate dismissal.

[30] In weighting the matter, I have formed the view that the Respondent held a reasonable belief that the Applicant’s misconduct was serious and as there was a breach of health and safety laws in the baking area, that it did warrant summary dismissal.

[31] I did turn my mind to whether the Applicant truly believed that he was not responsible for the breaches, and he had been undertaking his work diligently and in the same way he had been working for the previous years under his parents’ management. It may have been that under the previous management that the approach to work had been less disciplined and the audits by the Council had not identified the same matters, or possibly the Applicant had let his standards slip under new management and as he no longer was responsible to his parents felt less motivated to approach his work with the diligence he should have. In any event, the Council did identify critical breaches and they were in his area of responsibility, he was not a new employee, and the Respondent formed an entirely reasonable view that the Applicant had through his misconduct caused the business to be closed for a temporary period.

[32] The Code states that, “serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures”. In this matter, there was a serious breach of the health and safety standards, and the Applicant was held responsible for a major part of the business, the kitchen area.

[33] Having considered the evidence and submissions made by each party, I am satisfied that the Respondent reasonably believed that the Applicant engaged in serious misconduct warranting summary dismissal.

[34] Accordingly, I order that the jurisdictional objection be upheld, and that the Applicant’s application be dismissed.”

H v T (an acronym)  [2022] FWC 3007 delivered 11 November 2022 per Lake DP