The Fair Work Act 2009 (the Act) provides permanent employees of most NSW employers protection from unfair dismissal, including employees of small businesses. A Small Business Employer is defined as one with fewer than 15 employees.
However, the Act treats Small Business Employers differently to larger employers in several key respects, most notably the Small Business Fair Dismissal Code (the Code).
The Code is a fairly simple checklist for small businesses to use when dismissing an employee.
Under section 385 of the Act, a small business employee whose dismissal is consistent with the Code has, by definition, not been unfairly dismissed.
It is also important to note that a small business employee is only protected from unfair dismissal once they have completed 12 months of continuous service with the employer. Minimum service is 6 months for other employees.
Small businesses should, at a minimum, familiarise themselves with the Code and ensure they comply with it during any dismissal of an employee.
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This article is intended to be for information and educational purposes only and cannot be relied upon as legal advice. The information may not apply to your circumstances or to your particular situation. If you need specific advice or you have any questions, we welcome you to contact us directly.
