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LawAccess NSW > Representing Yourself - LawAssist

Was your employer a small business?

If your employer is a small business, it should comply with the Small Business Fair Dismissal Code (the 'Code') when it dismisses an employee.

Your employer is a small business if it employs less than 15 employees at the time you were dismissed or at the time you were given notice of your dismissal (whichever happened first).

    ​Who counts as an employee?

    It can sometimes be difficult to work out how many employees are employed by a business. You should consider the following.

    Full time, part time and casual employees

    Some businesses may have full time, part time and casual employees. Each full time and part time employee is counted as one person. Casual employees are only counted if they work on a 'regular and systematic basis' and have a reasonable expectation that they will continue to be employed. A 'regular and systematic basis' could include:

    • a set number of shifts per week, fortnight or month
    • a set number of hours per week, fortnight or month
    • a regular pattern of days, shifts or hours.

    Employees of associated entities

    If the small business has 'associated entities', you must count the employees of that business as well. An associated entity is another business that your employer controls, influences or has an interest or investment in. It can also be a business that controls, influences or has an interest or an investment in your employer. Two businesses will also be 'associated entities' if there is a third business that controls them both.

    You and any other dismissed employee

    When counting how many employees the small business had at the time you were dismissed, you must include yourself and any other employee who was also dismissed at the same time as you.

     Case study - AasifCase study icon

    Aasif was a full time employee at Walk This Way Footwear. Aasif was one of 12 staff members who worked either full-time or regular part-time hours. There were also four casual staff who worked only when needed, such as close to Christmas or when other staff were sick or on holidays.

    Aasif was told that he was being fired for constantly arriving at work late and was given two weeks notice. This was the first time the manager had raised the issue with Aasif. Aasif thinks it is unfair that he wasn't given a chance to fix up the problem.

    As the casual staff do not work on a regular and systematic basis, Walk This Way Footwear would be a small business employer.

    ​​What is the Small Business Fair Dismissal Code ('the Code')?

    The Code is a document that sets out a checklist for small businesses to follow when dismissing employees. If a small business follows the Code, there will not have been an unfair dismissal.

    The Code is separated into three sections: Summary Dismissal, Other Dismissal and Procedural Matters.

    Summary Dismissal

    This section of the Code states an employer can dismiss an employee without notice or warning when they do something that is 'serious misconduct'. This includes theft, fraud, violence and serious breaches of occupational health and safety procedures.

    Other Dismissal

    This section of the Code states that in cases that do not involve serious misconduct, an employer must warn an employee if they are at risk of being dismissed and explain why. Warnings can be verbal. They do not have to be in writing. The employee must be given a chance to fix the problem. This may include providing the employee with additional training.

    Procedural Matters

    This section of the code covers how dismissals should take place. It states that:

    • an employee who is at risk of being dismissed should be allowed to have a person with them at performance meetings to support them.
    • if an employee makes an unfair dismissal application, the employer must provide evidence that they followed the Code. This may include a completed checklist (which is available with the Code), copies of a written warning, a statement of termination or signed witness statements.

    You can get a copy of the Code from the Fair Work Ombudsman website.

    What happens if the employer doesn't follow the Code?

    If you were dismissed from a small business and your employer followed the Code, your application to the Fair Work Commission (the Commission) may not be successful.

    The employer will need to provide the Commission with evidence that they complied with the Code (for example, a completed checklist).

    If your employer has not followed the Code, it is still possible for them to defend the claim if they can show that there are other reasons why the dismissal was not unfair. You will need to explain to the Commission why you think your dismissal was harsh, unjust or unreasonable in the circumstances. For more information, see Was it unfair?

    Hint icon  If your employer was a small business when you were dismissed, you need to have worked for them for at least one year to be able to make an unfair dismissal application. For more information see How long have you been employed?

    For answers to commonly asked questions, see What is unfair dismissal? - Frequently Asked Questions.

     

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