Unfair dismissal and the Small Business Fair Dismisal Code

This passage from an unfair dismissal decision of the Fair Work Commission perfectly illustrates that when an employer seeks to rely upon the statutory jurisdictional defence of a business having complied with the Small Business Fair Dismissal Code near enough is not good enough.

“The difficulty for Sense Rugby is that while it gave Mrs Whiffen a warning about her

conduct in relation to “not completing set processes as required, despite many conversations

about how the role was split”, it never told her that she was at risk of being dismissed if there

was no improvement in her conduct. The closest the business came was telling Mrs Whiffen

that her failure to follow instructions would lead to “performance management”, was “serious”

and could have “serious consequences”. This was not sufficient for the purposes of consistency

with the Code because it did not raise the prospect of dismissal directly.

[51] I am satisfied that the dismissal was not consistent with the Code.”


Whiffen v Sense Rugby Pty Ltd [2023] FWC 2516 delivered 4 October 2023 per McKinnon C