So you never had any interest in working for the big end of town. You’ve enjoyed time working for a smaller business, happy with the many benefits that have brought in a pleasant close-knit environment.
And then you got fired.
Beyond that, you don’t think your termination was right and want to consider an unfair dismissal case.
But do small businesses need to jump through the same hoops as the larger corporations when it comes to terminating someone’s employment?
As it turns out, the answer is no. Small businesses have some slightly different rules, designed to accommodate for the fact that they don’t have the same resources, knowledge or procedures likely in place as their larger competitors do.
With that in mind, we’re going to explore the Small Business Fair Dismissal Code, so you can take a first glance at whether the procedure that your employer used to let you go might be suspect.
What Counts as a Small Business?
Being a code relating to “small business” we obviously need to define what one is.
Fortunately, it’s pretty easy. A small business is one which has fewer than 15 employees by headcount at the time of the dismissal.
Generally, casual employees aren’t counted unless they are regular casual employees (see here for our discussion on casual employees and unfair dismissal).
So if the total headcount of employees (including yourself) is less than 15, then the code probably applies.
What is the Small Business Fair Dismissal Code?
The code is designed to set out circumstances in which a small business employer can terminate an employee.
Of course, being a complex area, the code isn’t strict and definitive – it still contains a degree of flexibility, so there is no simple checklist of “this is OK” and “that is not OK”.
Generally, however, the code sets out when a small business can terminate an employee in two main buckets:
- Summary dismissal – that is, firing someone without warning;
- “Other” dismissal – everything that’s not (1).
Small Business Summary Dismissal
Your employer is allowed to fire you without warning or notice if they believe on reasonable grounds that your conduct is “sufficiently serious to justify immediate dismissal”.
So what counts as “sufficiently serious” to fire you without warning when it comes to a small business?
Well, the code does say that theft, fraud, violence and serious breaches of occupational health and safety procedures all tick the box.
But that’s not an exhaustive list. So there might be other things that could count as sufficiently serious that are still reasonable grounds for summary dismissal.
At this point it’s important to understand how the Commission is going to approach things if you bring an unfair dismissal case when you were fired for serious misconduct.
The Commission does NOT need to decide whether or not the conduct actually happened.
All the Commission will determine is whether your employer believed on reasonable grounds that:
- you engaged in the conduct;
- the conduct counts as “serious”; and
- the conduct justified immediate termination.
Think of it more as an analysis of what your employer believed and why they believed it than an objective investigation into whether you did what you were accused of.
Everything other than “summary” dismissal falls into the other category.
Here, your employer is supposed to meet with you to:
- identify the conduct of concern;
- warn you that there needs to be improvement;
- tell you that if there is no improvement, you might be fired.
In terms of the conduct, your employer is supposed to have a proper reason why your employment is at risk. That reason should be based on either your ability to do the job or your behaviour/conduct.
You are allowed to have a support person with you for this discussion if you want one. That’s often a good idea because it can be a tense time and having someone on your side can help, even if they don’t necessarily say much during the meeting. That person can be your employment lawyer however, they are only able to attend in the capacity of your support person and not as your advocate or spokesperson. In other words, you still need to do the talking.
Beyond just giving you this warning, you must then be given a reasonable opportunity to both respond to the warning and address the behaviour or issues that have been identified.
That could involve, for example:
- providing evidence that the conduct in question was not you;
- requesting (and receiving) training in a particular area that you are struggling with;
- implementing changes to your work routines or approach to particular matters within the area of concern.
Was Your Dismissal from a Small Business Unfair?
Generally speaking, if your former employer can establish that they complied with the code, an unfair dismissal claim will be hard.
However, as you will have seen, both summary and “other” termination have several steps that need to be complied with. Often a small business isn’t aware of these requirements or simply doesn’t comply with them.
If you have been unfairly fired from a small business and believe they may not have complied with the code, you should get advice sooner rather than later, given the tight timeframes for unfair dismissal.
You can reach out to us here for assistance.