When the Fair Work Act 2009 (cwth) come into operation on 01 July 2009, it brought with it s388(1) the Small Business Fair Dismissal Code.
The Code gives small businesses some extra ‘protections’ from unfair dismissal applications when terminating an employee.
Though what is it exactly, and does it apply to your business?
Based On Number Of Employees
If your business is lucky enough to have less than 15 employees, per headcount, then you are classified as a small business, and the Small Business Fair Dismissal Code applies to you.
This means that any new employee needs to serve a minimum qualifying period of being employed for 12 months before they can access the unfair dismissal provisions of the Fair Work Act.
Unfortunately, this also means that if your business has 15 or more employees, then you aren’t classed as a small business. For those businesses, it means that employees only need to serve a qualifying period of six months before they can access the unfair dismissal provisions of the Fair Work Act.
Following The Code
As small businesses don’t have their own HR Departments, nor are they likely to access specialist advice, the Small Business Fair Dismissal Code was created to give small businesses a checklist that they can follow to ensure that the termination of an employee is legal and fair.
The theory is, that if a business follows The Code, they will be protected from a successful unfair dismissal application.
To do this, the business owner/manager answers the questions on the checklist, providing additional information where required.
The checklist is then added to the personnel file of the employee to be used/referred to if an unfair dismissal application is lodged.