When it comes to employment law as regulated by Fair Work Australia, small business is treated somewhat differently. As defined by this government labour regulatory body, small business is any business with 15 or fewer employees. The number is calculated according to a basic headcount of all employees that includes temp and casual workforce that are employed on regular basis.
Further differentiating small to medium and large enterprises, government has created what’s called a small business fair dismissal code which basically stipulates that employees are not able to make an unfair dismissal claim in the first year of their employment commencement.
Should the worker be dismissed after 12 months of the start of their employment and the employer has stuck to this code, the termination will be deemed to be fair. Another scenario that would prevent an employee from commencing an unfair dismissal claim is when the company experiences a downturn or the role is no longer needed.
As with any size organisation, should redundancy be on the table, it must be fair and genuine meaning that the position is no longer available in that capacity or it has been moved to a different location for example. Australian employment so called Fair Work Act contains requirements that must be met for a redundancy to be deemed as genuine.
There are situations where an employee can be instantly terminated without notice or warning and these include when an employer has reasonable grounds to suspect that employee’s conduct was serious in nature. These serious misconduct can include violence, fraud, theft and breaches of occupational health and safety (OH&S) processes. In some instances, employers can elect to report certain incidents to police.
In all other cases where an instant dismissal is not warranted, a small business employer is obliged to give an employee a warning with a reason why their employment in the company may be under risk. The warning ought to be related to either employees inappropriate conduct or their inability to fulfil the job requirements. This warning can be delivered in a verbal however most appropriately and ideally in writing form.
As with any conflict, an employee must be given the opportunity to reply to the warning and also be given time to address the issue. The issue rectification process may involve additional training, counselling and follow up meetings on regular basis. Employee is also given an option to have a third person present during the consultations as long as that person is not acting in a capacity as an employment lawyer.