• Lexis Nexis

Summary dismissals by small businesses (unfair dismissal appeals)

A recent case of the Fair Work Commission (FWC) provides a useful illustration of how summary dismissals are dealt with under the Small Business Fair Dismissal Code.

Unfair Dismissal

The employer summarily dismissed the employee on the basis that he was running a business in competition with the employer.

While the employer failed to provide the employee procedural fairness in effecting the dismissal, for the purposes of the Code it was sufficient that the employer believed, on reasonable grounds, that the employee’s conduct was sufficiently serious to justify his immediate dismissal.

This provided an absolute defence to the employee’s unfair dismissal claim.

If the case had been decided by reference to the general unfair dismissal criteria set out in s 387 of the Fair Work Act 2009 (Cth) rather than the ‘statutory constraints applicable under the Code’, the FWC said that the employer’s failure to provide any notice or warning to the employee would have rendered the dismissal unfair.

In applying the Code, the FWC was not required to determine whether the employee had engaged in the conduct alleged against him, only that the employer had a reasonable belief that the employee’s conduct was serious enough to justify immediate dismissal.

However, the FWC did say that “where an employee is operating a business, or has an interest in a business, in direct competition to the business in which he or she is employed, such conduct ‘causes a serious risk to the viability and profitability of the employer’s business’ which justifies summary dismissal for serious misconduct. Such conduct ‘strikes at the heart’ of the employment relationship, rendering the continuation of the relationship utterly untenable.”

If you have an unfair dismissal matter you would like assessed, call Workers First on 07 3807 3807 or email gethelp@workersfirst.com.au

Read the full text of the Commission’s decision here: Gilani v GNZ Enterprises Pty Ltd t/a Right Price Conversions [2018] FWC 1719.