Home' The Channel Magazine : September 2009 Contents National Newsagent September 2009 53
Where there are contested facts, Fair Work
Australia will be able to decide the outcome
in either a conference or by holding a
The new system will be non-legalistic, the
aim being to keep lawyers and contingency
fee agents out of the process as far as
possible. Under the new system, legal
representation will be permitted, but only
with Fair Work Australia’s permission.
Decisions will be able to be made in a
conference setting. Fair Work Australia will
act consistently with the principles of natural
justice, including by ensuring that both
parties get to have their say and are able to
respond to allegations put against them.
Full public hearings will only occur where,
after considering the views of the parties,
Fair Work Australia decides this would be
the most effective and efficient way to
resolve the matter.
Small Business Fair Dismissal
The Fair Dismissal Code applies to small
business employers with fewer than 15 full-
time equivalent employees.
Small business employees cannot make
a claim for unfair dismissal in the first 12
months following their engagement. If an
employee is dismissed after this period and
the employer has followed the Code then
the dismissal will be deemed to be fair.
Employees who have been dismissed
because of a business downturn or their
position is no longer needed cannot bring
a claim for unfair dismissal. However, the
redundancy needs to be genuine. Re-filling
the position with a new employee is not a
The Code 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
Serious misconduct includes theft,
fraud, violence and serious breaches of
It is in the interests of the employer to
complete a checklist at the time
of dismissal and to keep it in case
of a future unfair dismissal claim.
However, it is not a requirement
of the Fair Dismissal Code that the
checklist be completed.
1. How many full-time equivalent
employees are employed in the
business? (Include the dismissed
employee and any other employee
dismissed at the same time).
2. Has the employee been employed
in this business as a full time, part
time or regular casual employee for
12 months or more?
3. Did you dismiss the employee
because of a genuine redundancy?
4. Do any of the following
a. The employee was stealing money
or goods from the business
b. The employee defrauded the
c. The employee threatened me or
other employees, or clients, with
violence, or actually carried out
violence in the workplace.
d. The employee committed a serious
breach of occupational health and
5. Did you dismiss the employee
for some other form of serious
6. Did you dismiss the employee
because of the employee’s
unsatisfactory conduct, performance
or capacity to do the job?
7. Did you dismiss the employee for
some other reason?
8. Did the employee voluntarily resign
or abandon his or her employment?
SMALL BUSINESS FAIR DISMISSAL CODE CHECKLIST
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.
In other cases, the small business employer
must give the employee a reason why he
or she is at risk of being dismissed. The
reason must be a valid reason based on
the employee’s conduct or capacity to
do the job.
The employee must be warned verbally
or preferably in writing, that he or she risks
being dismissed if there is no improvement.
The small business employer must
provide the employee with an opportunity
to respond to the warning and give
the employee a reasonable chance to
rectify the problem, having regard to the
Rectifying the problem might involve
the employer providing additional training
and ensuring the employee knows the
employer’s job expectations.
In discussions with an employee in
circumstances where dismissal is possible,
the employee can have another person
present to assist. However, the other
person cannot be a lawyer acting in a
A small business employer will be
required to provide evidence of compliance
with the Code if the employee makes a
claim for unfair dismissal to Fair Work
Australia including evidence that a
warning has been given (except in cases of
summary dismissal). Evidence may include
a completed checklist, copies of written
warning(s), a statement of termination or
signed witness statements.
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