Guide to termination and unfair dismissal rights of - Legal ...

c)d)the dismissal was not consistent with the Small Business Fair Dismissal Code; andthe dismissal was not a case of genuine redundancy”.To fully understand this provision it is necessary to also understand the meaning of the terms used in section 385.The meaning of these terms is discussed below.“Dismissed” - An employee must establish that they were dismissed. (Dismissal was discussed in general termsat the beginning of this guide.)The FWAct uses the following words: “terminated on the employer’s initiative”. 45 The use of these words is wideenough to include almost all processes that an employer may begin that result in a dismissal.The FWAct goes even further to make it clear that employees who were forced to resign because of the conductof the employer have also been dismissed under the FWAct. 46 A typical example is where an employer saysto an employee they will be dismissed if they do not resign. In these circumstances the employee will havebeen dismissed even though they may have formally resigned. There may be other circumstances in which anemployee may be forced to resign by the employer. 47An employee will not have been dismissed in any of the following situations:•y•y•yThe person was employed for a specified period of time, for a specified task or for a specified seasonand employment ended with the conclusion of the period, task or season. 48 (These fixed term conceptswere discussed earlier in this guide in relation to termination).The person was employed under a training arrangement of limited duration and the termination takesplace at the end of the training arrangement. 49The person is demoted but the demotion does not involve a significant reduction in remuneration (wages/salary) or duties. 50The definition of dismissed contains an anti-avoidance provision. 51 If the employer has employed the person undera fixed term, task specific or seasonal contract for the substantial reason of avoiding an employer’s obligationsthen the employee can still make an unfair dismissal claim.Small Business Fair Dismissal Code – A “small business employer” can defeat an unfair dismissal claim if theemployer is able to establish compliance with the “Small Business Fair Dismissal Code” (the “Code”). 52An employer is a small business employer if less than 15 employees work in the business. 53 Some casualemployees are counted as well as any employee whose employment is being terminated. 54Under the FWAct the responsible Minister of the Federal Government has declared the Code and its content. 55 Inbrief the Code sets out:•y•y•yCircumstances that permit a summary dismissal for serious misconduct.Circumstances in which other dismissals may be made.Various procedures which the employer can follow.If a small business employer can provide evidence of compliance with the Code the employer can argue thatthe dismissal was not unfair. It is important to note that an employer cannot defeat an unfair dismissal claim byjust pointing to the existence and their knowledge of the Code. The employer must provide evidence that theemployer has acted in compliance with (or consistent with) the Code in the actual dismissal.The Fair Work Ombudsman has prepared a checklist that some employers may use in following the Code.However, mere use of the checklist does not always mean that compliance with the Code has occurred. 56 Anemployer’s argument that the Code has been followed does not prevent an employee from commencing an unfairdismissal claim. It will be up to the employer to establish that there has been compliance with the Code.10