Unfair Dismissal (Respondent) - Small Business Employer Rules

Australia - federal jurisdiction. Small business unfair dismissal defences are determined by the Fair Work Commission (FWC). The Small Business Fair Dismissal Code is a legislative instrument made under the Fair Work Act 2009 (Cth).

The process involves first confirming the headcount at the date of dismissal to verify small business status. The 12-month qualifying period is calculated. If the employee has not completed 12 months, a Form F4 jurisdictional objection is filed. If the employee has served the qualifying period, the employer's compliance with the Small Business Fair Dismissal Code is audited in detail. For serious misconduct dismissals, the Code requires a genuine investigation and a reasonable, good-faith belief that the conduct was serious enough to warrant immediate dismissal. For non-serious misconduct and performance dismissals, the Code requires that warnings were given, an opportunity to respond was provided, and the employee was told the employment was at risk. The employer must demonstrate that its belief was genuinely held and based on reasonable grounds, that the investigation was proper and balanced, and that the employee was given a real opportunity to respond. The Form F4 objection and supporting evidence are filed, and a preliminary jurisdictional hearing is attended.

Key legislation: Fair Work Act 2009 (Cth) - s 23 (definition of small business employer - fewer than 15 employees), s 383 (12-month minimum employment period for small business employees), s 386(2) (compliance with the Small Business Fair Dismissal Code is a complete defence). Small Business Fair Dismissal Code (a legislative instrument under the Act) - separate requirements for serious misconduct dismissals (reasonable grounds for belief in serious misconduct based on proper investigation) and other dismissals (warnings given, opportunity to respond, employee informed the job was at risk). The FWC independently reviews compliance and does not simply accept the employer's self-assessment. Key cases: Pinawin v Domingo [2012] FWAFB 1359 (Code operates based on employer's reasonable grounds for belief at time of dismissal, judged objectively); Jeremy Ryman v Thrash Pty Ltd [2020] FWCFB 5227 (Full Bench - employer must have reasonable belief conduct was sufficiently serious to justify immediate dismissal without notice); Stien v Hire A Hubby Pakenham [2025] FWC 510 (Code did not save dismissal where consultation requirements under modern award were not met); George Grech v Matheson and Osman Pty Ltd [2026] FWC (compliance found based on substance of performance discussions even without formal written warnings).

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