Small Business Fair Dismissal Code
The following is offered as a guide and brief summary of the Small Business Fair Dismissal Code, which came into operation on 1 July 2009, pursuant to the Fair Work Act 2009.
For the purposes of the Act, a small business is defined as one which employs less than the equivalent of 15 full time employees
· Summary dismissal
The Code defines that it is fair for a small business 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 dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not regarded as essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making any such report.
· Other dismissal
In other circumstances, 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 Code requires that employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. Example in which such a warning could be issued might be repeated instances of a lack of punctuality, or a repeated failure to follow documented work procedures despite clear instruction.
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 employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee clearly understands the employer's job expectations.
· Procedural matters
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 professional capacity.
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.
· Visit the code at Fair Work Australia
Further information on Fair Dismissal procedure can be found at the website of Fair Work Australia, http://www.fwa.gov.au/index.cfm?pagename=legislationfwdismissalcode If you want to speak with someone to clarify your responsibilities under the Act, you can phone Fair Work Australia on 1300 799 675
· Avoiding the need for dismissal
The dismissal of an employee is both uncomfortable and time consuming. Investing adequate time and thought in each of the following will help your small business avoid any need to go down this path …..
1. Recruit staff who have displayed in their past work history a positive attitude and solid, reliable work ethic (ie. referee checking has verified this for you)
2. Allocate plenty of time to the initial induction and training of any new staff
3. Ensure there are clear and simple documented procedures that your staff can refer to if they are asked to perform tasks which are somewhat new or unfamiliar to them
4. As their manager, ensure you are providing your staff with regular feedback on their performance. Always recognise instances of good work by your staff - remember the old saying "What gets rewarded will more likely be repeated"
If you would like some more advice on effective staff management practices, have a look at Management Tips
If you would like some more advice on effective staff management practices, have a look at Management Tips
