What does Fair Work deem a small business?
The Fair Work Act 2009 s.23 defines a small business employer has employing less than 15 employees. If an employee is lodging an unfair dismissal claim than this includes that employee in the 15 head count. For this purpose, casual employees are not included unless they are deemed regular casuals.
What is the small business dismissal code in Australia?
The Small Business Fair Dismissal Code was declared by the Minister for Employment on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009.
An employer has the right to dismiss an employee without notice or warning if they have reasonable grounds to believe an employee’s conduct was serious in nature and justifies instant dismissal. Instance of serious misconduct includes:
- theft
- fraud
- violence
- serious breaches of health and safety, and
- harassment.
In certain circumstances such as fraud or theft the dismissal needs to deemed serious enough that it warrants a report to local police. However, the ownership is on the employer to ensure they have honest and reasonable grounds and supportive evidence to make such a report.
All small businesses should have employment contracts in place to protect themselves. This includes probation periods and clearly outlining its policies and procedures. Confirming the terms of employment and detailing disciplinary rules & procedures will help to avoid disputes or confusion. All policies and rules should be equally enforced across all employees, without exception to maintain equal fairness.
It is reasonable for a small business employer to dismiss an employee without notice or warning if the employer has reasonable grounds to believe the employee was guilty of serious misconduct. However, as mentioned above this conduct needs to be serious in nature and encompass theft, fraud, violence, health and safety, or sexual harassment.
Matters other than serious misconduct
For other matters outside serious misconduct a small business employer must give adequate notice around a possible dismissal. This notice should be provided in the form of a warning to the employee in writing where possible. The employee should be given the opportunity to respond accordingly. In addition, the warning should provide opportunity for the employee to correct their conduct or behaviour.
Fighting For Employees of Small Businesses Contact our team for an obligation free consultation.
We support employees of small business
If you feel you have been dismissed without notice and your conduct was not serious nor does it justify instant dismissal, get in touch. Likewise if you feel your employer has failed their obligation in line with the Small Business Fair Dismissal Code, we are here! Australian Workplace Discrimination Representatives will support you with the best solution to getting your matter resolved. This may include in filing an unfair dismissal claim if you fit the minimum requirements to do so. Call today on 1800 333 666.
