FWC clarifies interaction between the Small Business Fair Dismissal Code and redundancy provisions
Sourced: Lexis Nexis & Fair Work Commission

The Small Business Fair Dismissal Code has no relevant operation in circumstances where a small business employee is made redundant, a recent case of the FWC has found (Hall v The Whole Box ‘n Dice Pty Ltd). The Code is concerned with dismissal based on an employee’s conduct, capacity, or performance of their work; it is silent in respect to circumstances involving a dismissal which was made entirely because of the employer’s financial circumstances. However, the FWC did say that “in a general sense, the procedural requirements that can be identified in various parts of the text of the Code, reflect a broad requirement to provide employees with a process that ensures that any dismissal includes reasonable consultation, and an opportunity for discussion prior to finalisation and implementation of the dismissal”. Where an employee is dismissed for financial reasons and there is no issues regarding the employee’s conduct, capacity, or performance, a defence to a claim of unfair dismissal may lie under the genuine redundancy provisions in the Fair Work Act 2009 (Cth), but not the Small Business Fair Dismissal Code.

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