A small business found itself facing an unfair dismissal claim, despite having the additional protection of the Small Business Fair Dismissal Code. That Code makes it easier for a small business employer to resist a claim from an employee of unfair dismissal – as long as the employer follows the proper process. The main parts of the code:
- has genuine reasons for dismissing which are based on conduct or capacity;
- give warning to improve, an opportunity to improve and to respond; and
- tell the employer that he or she faces dismissal.
Have genuine reasons to dismiss
There needs to be actual conduct or lack of capacity to do the job in order to properly dismiss an employee. It needs to be sufficiently serious to warrant dismissal.
The Muzz Buzz franchisee argued around five grounds. Only one ground had the potential for dismissal – not following an instruction concerning the rosters. However, after some back and forth, the rosters were written to follow the instructions, meaning that that ground was rectified.
The remainder of the grounds were once off problems.
The FWC suggested that the language used by the employee may have given rise to dismissal – but more on that in another Small Plate.
Warnings need to be specific
If an employee is’t performing the way he or she ought to, then the employer needs to tell them and give them an opportunity to fix it and to respond to the allegation. That warning needs to point out not only what was done incorrectly or not done at all, but also what’s expected of the employee. It needs to be specific.
The employer in this case didn’t give enough information about the problems to allow the employee to try and fix them. “The store looks like crap” won’t cut it.
Small Business Fair Dismissal Code didn’t apply
The FWC decided that the employer didn’t comply with the Code. That meant the employer did not have the protection of the Code – which is easier to comply with than the full unfair dismissal provisions under the Fair Work Act.
Unsurprisingly, the employer was found to have unfairly dismissed the employer. The employer’s undoing started with not having proper grounds to dismiss the employee.
How to do it better
If you’re considering dismissing an employee, determine if you’re a small business. It’s as easy as a simple headcount of all employees (including casual staff) who are employed on a regular and systematic basis. If there are fewer than 15, you’re a small business. More on that at the FWC.
Next, read the Small Business Fair Dismissal Code. It’s about one page long.
Finally, consider using the Small Business Fair Dismissal Checklist (under downloads). You need to use it properly. Ticking boxes or going through the motions will not be enough – just ask the Muzz Buzz franchisee.
If you’re in any doubt, speak with a lawyer.
Further reading: Munckton v Laser Bean Pty Ltd  FWC 2874