The Small Business Fair Dismissal Code (Code)
sets out a process for the dismissal of employees by small business
employers (ie, currently, employers with fewer than 15 full time
equivalent employees). In addition, a Small Business Fair Dismissal
Code Checklist (Checklist) exists as a tool to
help small business employers comply with the Code.
In an effort to make clearer the obligations of small business
employers in dismissal situations, the government has changed the
preamble to the Code and the Checklist.
Key changes
The key changes to the Code and the Checklist relate to
redundancy and dealing with employee requests for a support
person.
The preamble to the Code has been amended to highlight the
requirements for determining whether a dismissal was a 'genuine
redundancy' within the definition of section 389 of the Fair
Work Act 2009 (Cth) (Act). Under the Act, a
dismissal will be considered a genuine redundancy if:
- the employer no longer required the employee's job to be
performed by anyone because of changes in the operational
requirements of the employer's enterprise; and
- the employer complied with any obligation in a modern award or
enterprise agreement that applied to the employment to
consult about the redundancy.
A dismissal is not a case of genuine redundancy if it would have
been reasonable in all the circumstances for the person to be
redeployed within the employer's enterprise or an associated
entity of the employer.
The key changes to the Checklist include:
-
new introductory text regarding
the function of the Checklist and its interaction with the
Code;
-
amended and additional questions
regarding whether the dismissal was a 'genuine redundancy'. The
Checklist now asks employers whether:
- the dismissal arose because it
'didn't require the person's job to be done by anyone because of
changes in the operational requirements' of the business;
- it complied with any applicable
redundancy consultation requirements; and
- it considered redeploying the
employee;
- additional questions concerning the discussions between the
employer and employee, namely whether the employee made any request
to have a support person present (who was not a lawyer acting in a
professional capacity) at those discussions and whether the
employer agreed to any such request.
What this means for small business employers
In effect, the amendments to the Code and the Checklist do not
change the obligations of small business employers with respect to
dismissals.
The Checklist provides an invaluable guide for small business
employers. However, it is important to note that simply completing
the Checklist will not mean that you have complied with the Code,
nor is it a requirement of the Code that the Checklist be
completed. The Checklist may however help you assess and record
your reasons for dismissing an employee, which may prove useful if
you face a future unfair dismissal claim.
(Authored by Alexandra Klimovics, Cornwall
Stodart)