Unfair Dismissal under the Small Business Fair Dismissal Code
What is the Small Business Fair Dismissal Code
As of 1 January 2010, private sector employees are protected by the new national industrial relations system, the Fair Work Act, while public sector employees are covered by the state industrial relations system.
The Small Business Fair Dismissal Code is a new national workplace system designed to assist small businesses and their employees and works in conjunction with the Fair Work Act 2009.
The new system provides that the minimum employment period is now twelve (12) months (instead of the original six (6)) and that an employee cannot make a claim for unfair dismissal within this twelve (12) month period.
The system also recognises that Small Businesses are unlikely to have expert Human Resources staff and aims to assist employers ensure that any valid dismissals are not considered to be unfair. This is done via the Dismissal Code Checklist, discussed below.
What constitutes a Small Business?
Under the Code, a small business is considered to be any business where the employer employs less than fifteen (15) full-time equivalent employees. Please note that this number can include employees of related entities.
Application for Unfair Dismissal Remedy
An employee has fourteen (14) days from the date of the dismissal coming into effect to lodge an application to Fair Work Australia. Applications are made to Fair Work Australia as part of the new national scheme. Unfair Dismissal is determined to have occurred when an employee applies to Fair Work Australia and it is determined that:
For small businesses, for an employee to be eligible to make an unfair dismissal remedy application the employee must have:
In what circumstances is conduct likely to be found Harsh/Unjust/Unreasonable?
In determining whether the employee’s dismissal was harsh, unjust or unreasonable, Fair Work Australia is required to consider the following:
How can you prevent a claim for Unfair Dismissal?
Steps you can take
Usage of the Small Business Fair Dismissal Code Checklist
The Australian Government has provided a checklist for small business operators as a guide to complying with the Small Business Fair Dismissal Code. It is recommended that employers use this checklist and keep a copy of the completed checklist on file in the event of a future action.
Please be aware that filling in this checklist does not necessarily mean that the Code has been complied with, it acts as a guide only.