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Hi, welcome to Tips Tuesday. My name is Melanie Thorley, and I’m the principle solicitor at HKT Law. Today we’re going to look at the small business fair dismissal code. Employers can’t dismiss their employees in circumstances that are harsh, unjust, or unreasonable. What is harsh, unjust and unreasonable will depend on the circumstances of each case, but it’s important to remember to be fair to employees, particularly when it comes to termination. They should be given reasons for their dismissal, and an opportunity to respond to those dismissals.
If you’ve got a business with fewer than 15 employees, then you’re covered by special dismissal arrangements. Those are different from those of a larger business, and they include that the employee will need to have worked in your business for at least 12 months in order to be eligible to make a claim. If you follow the small business fair dismissal code and the dismissal of the employee isn’t harsh, just, and unreasonable, then it is very likely that the dismissal will be deemed to be fair.
You can see here that I’ve got the small business fair dismissal code up here, and you can see that it commenced some time ago. If we scroll down here, it will show you that the application is for businesses with less than 15 employees who are in the first 12 months of their appointment. They cannot make a claim for unfair dismissal.
If an employee is dismissed after this period, they can make an application for an unfair dismissal. However, if you follow the code, the dismissal … and it is not harsh, unjust, or unreasonable, then it’ll likely be that you would … it would be deemed as fair.
We’re just going to take a look at this code really quickly because I’ve given you a link on how to download this code. The code states that for a summary dismissal, that is an instant dismissal, that it is fair for an employer to dismiss an employee without any notice or warning if they believe the grounds of the employees conduct is sufficiently serious to justify it. It’s given you some options here of what serious misconduct is, and I would encourage you to look into that further.
If we just keep scrolling down it talks about what you need to do in terms of having discussions with your employee. Now this is the check list. This is a very simple list. It asks you if you have 15 or more employees, and it just, again, it states if you’ve got less than 15 then this applies. Now, have they been employed for 12 months or more? Well if they haven’t been, then the employee can not make an unfair dismissal claim. Again, that’s what we’ve already gone over.
Okay, so did you dismiss an employee because you didn’t require their job to be done? Well, there’s some questions that surround this. You can go through those yourself. Did you dismiss the employee for some form of serious misconduct, if yes, then you need to put the reasons here. Now, it does say, if you answered yes to any questions in part three, four, or five, you’re not required to answer the following. So that’s about, broadly speaking, redundancy, there was serious misconduct, and here’s the reasons for the misconduct. Let’s say that didn’t happen, well then you’ve got to step through the list itself. Just make sure that the employee does get a chance to have somebody who will support them. A support person doesn’t act as their advocate, and if you want to have some more information about that, feel free to give me a call.
We’re just going to scroll down a little bit more, about giving the person or the employee some reasonable time to improve their conduct, et cetera et cetera, and any other reasons why you may have dismissed it. Now you can see that you’re making a declaration at the end of this. My advice is to print this out, fill it out, go through the steps, and then if you still want to dismiss that employee, then think about the steps that you’ve taken here. Whether it’s harsh, unjust, or unreasonable, and then make a decision based on those and that information.
I hope that’s helped you today. Thank you for listening. I will be back next week.