Unfair dismissal and small business; serious misconduct

“The ‘Summary Dismissal’ section of the Code clearly applies to dismissals that have ‘immediate effect’ as that term is understood by reference to the decision in Ms Li Li Chen v Australian Catering Solutions Pty Ltd T/A Hearty Health, 35 and are not dismissals on notice.36

Without being exhaustive, in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services (Ryman) the Full Bench provided a useful synopsis of the proper approach to the construction and application of the Summary Dismissal aspect of the Code and its interaction with Regulation 1.07 of the Fair Work Regulations 2009 (Cth) (Regulations).

In Ryman the Full Bench considered the meaning of ‘summary dismissal’ and said that it referred to a dismissal without notice arising from ‘a breach of an essential term of the employment contract, a serious breach of a non-essential term or the contract, or conduct manifesting an intention not to be bound by the contract in the future on the part of the employee’. 37

However, it is not the case that under the Code the Commission has to be satisfied that serious misconduct was the basis for the dismissal. 38 Rather, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal and one must also consider whether that belief was based on reasonable grounds.39 This element, which has been described as the second element,40 incorporates the concept that the employer has carried out a reasonable investigation into the matter.41 It is not necessary to determine whether the employer was correct in the belief that it held.42 Whether the employer had ‘reasonable grounds’ for the relevant belief is of course to be determined objectively.43

The focus on ‘serious misconduct’ must be taken as identifying the subject matter and it appears to be accepted that this term gleans its meaning from s 12 of the Act and thereafter Regulation 1.07. 44

In applying these requirements, I must also have regard to the procedural matters highlighted within the Code.”

Akpey v Perth Re Pty Ltd (2018) FWC 5699 delivered 27 September 2018  Arbitration Roster C