When following the Code helped a small business owner justify dismissing his employee. Insights and learnings you can adopt in your business…
THE FOLLOWING IS NOT ADVICE – CONTACT US FOR ADVICE
If you have fewer than 15 people (counting part-time, full-time and regular casuals as individuals not FTE) you are likely to be a small business. You are also likely to have better protections with:
- processes to follow when dismissing (sacking) someone
- minimum employment period.
- redundancies
The KEY LEARNING in this case was that the employer followed the Small Business Fair Dismissal Code which includes a check list. This provided him a useful framework when the employee sought relief from the Fair Work Commission.
KEY TEST
For an employer to believe on reasonable grounds that the conduct of the employee was serious enough to justify immediate dismissal, the employer must establish that
(1) they did in fact hold the belief that:
– the conduct was by the employee
– the conduct was serious, and
– the conduct justified immediate dismissal. and
(2) The employer must establish that they had reasonable grounds to hold the belief, which could be established by providing evidence of inquiries or investigations the employer undertook to establish their belief.
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CASE SUMMARY
In Bevan v Nigwil Cellars Pty Ltd, a casual shop attendant was summarily dismissed after 14 months of employment for serious misconduct. The employer, a small business, defended the subsequent unfair dismissal claim by asserting they had correctly complied with the Small Business Fair Dismissal Code (the Code).
The employee, Mr Bevan, had a documented history of inappropriate conduct. This included telling one customer to “neck” a bottle of vodka and an elderly customer to “sprinkle some sugar” (meaning ‘say please’) before he would serve them. The final incidents involved the employee verbally abusing a co-worker, who subsequently stated they were “scared” of him, and the employee admitting to filming young children taking a beer from a fridge and posting the video to his personal Facebook page, which he dismissed as a “joke.”
The employer, Mr Williams, determined the employee’s cumulative behaviour posed a serious psychological Work, Health and Safety (WHS) risk to staff, customers, and himself. After the final incident, he deliberately went home, consulted the Code checklist, and formally dismissed Mr Bevan the next day.
The Fair Work Commission found the employer’s belief that the conduct constituted serious misconduct was based on reasonable grounds. The employer’s “textbook application” of the Code—specifically identifying a WHS risk—made the summary dismissal fair. The employee’s application was dismissed.
The employer successfuly rested on two key pillars:
correctly identifying a Work, Health and Safety (WHS) risk and
meticulously following the Small Business Fair Dismissal Code.
HR TAKEAWAYS
– Document all behavioural incidents progressively throughout employment
– Consult Small Business Fair Dismissal Code and complete checklist before dismissing
– Reasonable grounds require credible, sensible investigation—not absolute proof
– Prioritise psychological safety of employees and customers
– Consider safety measures when conducting dismissal meetings
– Summary dismissal is appropriate when conduct poses serious and imminent risk to health, safety or business reputation
