Unfair Dismissal along with what it Means for Your Small Business in Australia

In regards to labour law as regulated by Fair Work Australia, small business is treated somewhat in different ways. As described by this government labour regulatory department, small business is any business which have 15 (fifteen) or fewer personnel. The number is calculated in accordance with a basic headcount of all employees that features temp and part time people that are employed regularly.

Additionally separating the difference between small to medium and big enterprises, federal government has developed what's termed a small business fair dismissal code which generally stipulates that company employees aren't allowed to make an unfair dismissal demand in the first year of their employment starting.

Should the employee be dismissed subsequent to twelve months of the start of their job and the employer has stuck to this particular program, the dismissal will be regarded to be fair. One other scenario that would prevent a staff member from kicking off an unfair dismissal claim occurs when the company experiences a drop in sales or the position isn't needed.

As with any size firm, should redundancy be on the table, it needs to be fair and real meaning that the position is no longer available in that space or it has been shifted to a completely different town for instance. Australian employment so called Fair Work Act incorporates standards that must be met for a redundancy to be deemed as genuine.


There are circumstances in which a worker might be instantly terminated without notice or warning and such include when a business has reasonable argument to suspect that employee's conduct was major in nature. These severe misconducts can include violence, fraud, theft and breaches of occupational health and safety (OH&S) processes. In some instances, employers can elect to report particular incidents to police.

In all other cases in which an instant dismissal is not needed, a small business firm is obliged to give a staff member a warning with a reason why their career in the company may be under threat. The warning should really be based on either personnel improper conduct or their lack of ability to fulfil the position requirements. This caution can be served in a verbal however most appropriately and ideally in written form.

As with any conflict, a worker ought to be given an opportunity to answer to the warning and also be provided with time to focus on the issue. The issue rectification process may involve more training, counselling and follow up conferences on regular basis. Employee is additionally provided an option to have a third individual present throughout the consultations provided that that individual is not acting in a capacity as an employment lawyer.

About the Author:

McArdle Legal are employment and unfair dismissal lawyers situated at 5/192 Pitt Street, Sydney NSW 2000, aid individuals and companies remedy their industrial law disputes and also deliver mediation services.