What follows is an extract from the Fair Work Commission’s unfair dismissal benchbook about the provisions of the Fair Work Act which permit the Commission to be more lenient to small employers when deciding unfair dismissal cases.
“Size of employer’s enterprise and human resources specialists
See Fair Work Act ss.387(f) and 387(g)
Sections 387(f) and (g) look at factors that might have impacted the ability of the
employer to follow a fair process in effecting a dismissal. Whether the employer was a
small business or a larger employer will be relevant.
For example, a small business may not have the same resources on hand as a larger
business which may employ managers or specialist human resources staff.
While there is acknowledgement that small businesses are genuinely different in nature both
organisationally and operationally, the procedures followed in dismissing a person cannot be ‘devoid
of any fairness’.379
The Commission has observed that ‘no employer should ever consider’ that ss.387(f) and (g) could
‘be used as a shield behind which to hide when they had engaged in conduct which was improper,
belligerent and bullying’.380 The Commission has commented that ‘[c]ommon sense courtesies of
conduct ought to exist in any workplace, whatever the size’.381
Case example: Dismissal was unfair – Small company with no human resources expertise
Pergaminos v Thian Pty Ltd t/as Glenhuntly Terrace PR920123 (AIRC, Lacy SDP, 16 July 2002).
The employee was employed as a cook in a special needs house. Due to a downturn in business,
there was no money to pay the employee’s entitlements. The employer was a small business. It
was found that the size of the business affected the procedures followed in dismissing the
employee. It was found that the termination was harsh and unjust and ordered 4 weeks’
compensation.”