Unfair dismissal and the Small Business Fair Dismissal Code

The Small Business Fair Dismissal Code provides that

“Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”

To what extent doers this impose an obligation upon an employer about to use the provision to engage the employee in a process which fairly permits the employee to defend himself or herself? For example to put the conduct complained of into context.

“To hold a belief on reasonable grounds it is necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. Neither Mr Garro nor Ms Isac held any such discussions with Ms Wright prior to her dismissal. There was no discussion held with Ms Wright about the perceived serious misconduct, nor the implications any such conduct would have on her future employment with Essendon Realty.

In my view, Essendon Realty has not been able to establish by way of evidence that they had reasonable grounds to hold the belief that there was serious misconduct. “


Wright v Essendon Realty P/L T/A Raine & Horne (2017) FWC 1993 delivered 7 April 2017 per Harper-Greenwell C