Senior Fair Work Australia official says unfair dismissal Code Checklist is “deficient”

It was supposed to be the simple checklist that companies with under 15 staff could use to protect themselves from unfair dismissal claims.

But Senior Deputy President Matthew O’Callaghan has labelled the Small Business Fair Dismissal Code checklist “deficient” as it does not mention that staff have the right to have a support person present in a termination discussion.

O’Callaghan made the statement in a case involving the dismissal of a worker employed by a South Australian bakery over the submission of inaccurate timesheets.

The bakery owner referred to the Small Business Fair Dismissal Code Checklist in making the termination. The Checklist, issued by the Government, was issued alongside the Small Business Fair Dismissal Code, which outlines the rules small employers must follow if they want to be protected from unfair dismissal cases.

However, despite finding the employer had “completed” the checklist, and finding that “the termination of his employment was neither unjust nor unreasonable”, he found that the termination was harsh because the employer had not made it clear that the worker had a right to have a support person present during the termination discussion.

But as O’Callaghan pointed out in his judgement, while this right is made clear in the Small Business Fair Dismissal Code document, it is not made clear in the accompanying checklist.

“I consider that the Checklist is deficient in this respect as it does not address the right to have a person to assist. There is nothing in the Checklist itself that would have alerted [the employer] to the requirement in the Code for an employee to have another person present to assist in circumstances where dismissal is possible,” he says.

“This deficiency, together with the extent to which the Checklist does not assist where there are disputed facts or an element of doubt about the reasonableness of the employer position means that I consider the checklist to be of dubious value as a determinant of whether the Code has been complied with.”

Opposition small business spokesperson Bruce Billson has seized on the decision as evidence the checklist might not provide the protections first thought.

Billson told SmartCompany this morning that the matter was raised at a Senate Estimates hearing last night.

“The Government said it would continue to monitor supporting material to the Code and make refinements where necessary.”

But Billson says there are some questions of who “owns” the document and would make changes – the Government or Fair Work Australia.

SmartCompany has contacted the office of Minister Julia Gillard to ask whether she will review the Checklist but were directed to Fair Work Australia.

Comment is being sought from FWA.

Billson wants the matter resolved quickly, and says the Government had promoted the Code and Checklist as “simple and certain protection” for small business employers against unfair dismissal claims.

“They need to take action quick smart to reassure the small business community.”

Industrial relations lawyer Peter Vitale of CCI Lawyers says he has been very careful about advising clients on the use of the checklist.

“We’ve certainly been very careful when we’ve been giving clients advice about how they satisfy the Small Business Fair Dismissal Code. It would be fair to say strict reliance on the Checklist isn’t something we encourage clients to rely on.”

While he points out that the Checklist doesn’t have any legal standing, he believes the Government should act to update the Checklist in light of the case.

“If the Government was going to publish these things with the intent that small businesses can rely on them, you would hope they would be accurate.”

“Small businesses really need to ensure that they have a valid reason for terminating employment and they follow a valid process. And really, that process is not much different to the process larger businesses need to go through.”