Unfair dismissal; the small business code defence

As a senior member of the Fair Work Commission has pointed out in a recent decision of the Commission in an unfair dismissal case, these are the elements which must be satisfied by a small business employer relying upon the Small Business Fair Dismissal Code to satisfy the jurisdictional defence provided for by the Code.

“On the other hand, if the Commission finds the employer has complied with the Code, that is the end of the matter and the applicant’s unfair dismissal cannot progress and must be dismissed. The particular factors in the Code applicable to this matter may be summarised as follows:

(a) the employer must give the employee a reason why their employment is at risk of being terminated;

(b) the reason must be a valid reason, based on the employee’s conduct or capacity to do the job;

(c) the employee must be warned their employment is at risk, if there is no improvement in their performance or conduct;

(d) a warning can be verbal, or preferably in writing;

(e) the employer must provide the employee an opportunity to respond to the warning/s;

(f) the employee must be given a reasonable chance to rectify the problem;

(g) rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations;

(h) in discussing with an employee that their dismissal is possible, the employee can have another person present to assist; and

(i) the employer will be required to provide evidence of compliance with the Code which may include:

  • a Code checklist;
  • copies of written warnings;
  • notes of meetings where discussions are held; and/or
  • statement and/or oral evidence from witnesses.”

Cornell v Falcon Settlements Pty Ltd t/a Peel Legal Barristers & Solicitors (2020) FWC 1974 delivered 12 May 2020 per Sams DP