The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a worker who was employed as a casual shop attendant.
In response, the employer raised the jurisdictional objection that the employer was a small business employer and the employer complied with the Small Business Fair Dismissal Code.
The case required the FWC to examine whether the employer’s business was a small business, whether the employer complied with the Code, and whether the worker’s claim was beyond the Commission’s jurisdiction.
Worker’s evidence and credibility assessment
The worker was only employed for 14 months on a casual basis. Throughout his employment, there were instances of him making inappropriate comments to customers and coworkers.
These included repeatedly making comments to a coworker regarding body odour in a demeaning manner, and in late November or early December 2024, saying to a female customer who had a bottle of vodka, “Are you going to neck that right now?” That customer was extremely offended and telephoned the owner later that evening in tears.
On 28 February 2025, in response to a request by an elderly male customer for a case of beer from the cool room, on return from the coolroom the worker repeatedly said to the customer “give me a bit of sugar” and to “put a little extra on it” (meaning to say please) or the customer would not get the case of beer.
The customer left without a purchase. The worker’s evidence regarding this incident was: “I believe I asked the gentleman to just say ‘Please’. I did indeed use the term ‘Sprinkle some sugar on it.’ I’m not sure if that confused the gentleman. It’s a very casual way of saying, you know – when he asked me to clarify, I said, ‘You can just use your manners.'”
When the owner discussed the incident with him, the worker admitted that his response was excessive and that he was going through some things in his personal life that caused his extreme reaction.
The owner told the worker his unacceptable behaviour could not happen in the workplace. On 17 April 2025, the owner overheard a heated discussion between the worker and another coworker.
The worker was taking issue with how the coworker was stocking fridges, and spoke with the owner. On 19 April 2025, the owner asked the coworker if everything went ok on 17 April.
The coworker explained he had been verbally abused by the worker. The coworker advised the owner, “I’m scared of him, I don’t want to work with him.”
Incident with coworker and dismissal decision
The owner and the worker subsequently discussed the incident. The worker admitted to calling the coworker a “f**king liar” on 17 April 2025.
Yet again, the worker stated that he was going through “a lot of family shit right now” and that was the reason he lost his temper.
On 26 April 2025, the worker approached the owner to discuss events of 17 April 2025, and his verbal altercation with his coworker.
The worker’s focus was for disciplinary action to be taken against the coworker for not restocking fridges properly.
The worker also alleged that he believed the coworker to be on a higher wage than him and demanded to see the hard copy pay slips of the coworker.
The worker went on to make more derogatory comments regarding the coworker, including “he is a protected species”.
Upon returning home, the owner realised the worker posed a psychological risk not only to customers and other employees, but also to himself.
To discharge his primary duty of care to other employees under work, health and safety legislation, the owner felt the worker could not work for the employer, particularly on days that the owner could not be there.
In cross-examination, the owner’s evidence was: “It was originally going to be a written warning, and then I was going to dismiss you under whatever laws of saying I’d give you one or two weeks, but then, after the conversation with me on the 26th, I went home and I made that immediate decision that you would be terminated without warning.”
On the evening of 26 April 2025, the owner consulted and completed the Small Business Fair Dismissal Code checklist.
His evidence was: “I wanted to make sure that I was going to do it the right way, which is why I went home, I consulted my written warning, dated it. I then consulted the Small Business Checklist to pursue that I’d done the right thing and came in the next day.”
On 27 April 2025, the owner attended the shop while the worker was on shift.
His wife came with him as he was concerned that Police involvement might be necessary. The owner asked the worker to enter the office and let him know that he was being dismissed, effective immediately.
The worker replied, “No, that’s horseshit”, and “I thought we had sorted it out yesterday”. The owner responded, “I can’t get past this type of conduct”.
Dismissal meeting events
A customer entered the store and the owner moved to the counter area to serve her. The worker turned to the owner’s wife and stated, “are you here to hold his hand?” The owner’s wife responded “no, just here to make sure you keep your anger in check”. The worker turned to the owner and called him a “f**king coward”.
The worker gathered his belongings and left the store. In the meeting on 27 April 2025, a termination letter was provided to the worker which stated it had been brought to the owner’s attention that the worker had recently acted in a manner that had intimidated another staff member.
The letter said this appeared not to be an isolated issue, as the owner had also received notice of occasions where this had happened with customers. The letter stated this kind of conduct was not tolerated under work health and safety legislation.
The letter indicated that bullying in the workplace was unacceptable and discourteous treatment of customers was also inappropriate.
The letter stated a previous discussion was held regarding this but it appeared the improvement in the worker’s conduct was not evident. The letter said this was a first and final written warning regarding this matter.
The FWC examined whether the employer was a small business. The Commissioner accepted that the employer was a small business.
In the application, the worker claimed the employer had between one and 14 employees. In the employer’s response, the employer provided that it had seven employees.
The Code dealt with dismissals separately in respect to serious misconduct and poor performance.
The Code provided: “It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures.”
Small Business Fair Dismissal Code examined
The worker was summarily dismissed. The Commissioner referred to a Full Bench decision which considered the summary dismissal aspect of the Code at length.
The Full Bench held: “There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration of whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly, it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter.”
The question the Commissioner needed to consider was whether the owner believed on reasonable grounds that the worker’s conduct was sufficiently serious to justify his summary dismissal.
In that consideration, the Commissioner noted the textbook application of the Code and the Small Business Checklist by the owner, where he “consulted the Small Business Checklist to pursue that I’d done the right thing and came in the next day”.
In the employer’s response, the employer had provided that discussions regarding the serious misconduct were undertaken with the employee on 26 April, which resulted in the worker intimidating the owner as his manager.
The owner decided to utilise the provision for dismissal without notice or warning made in the Small Business Fair Dismissal Code and checklist.
The employer stated that the risk of psychological harm by the worker to employees, including the owner, was high.
In that circumstance, the worker’s conduct caused a serious and imminent risk to the health and safety of persons, and the reputation of the employer’s business.
The second matter to address was whether the owner had “reasonable grounds” to believe the worker’s conduct was sufficiently serious to justify his dismissal.
The meaning of “reasonable grounds” in the Code was that the grounds were “reasonable” when viewed from the standpoint of what a reasonable person would conclude as grounds which were credible, sensible, logical or plausible.
Code compliance finding made
The Commissioner stated: “On the facts I have found to exist, it is entirely unremarkable that [the owner] concluded that he had reasonable grounds for believing [the worker’s] conduct was such as to justify instant dismissal. From those circumstances, I am comfortably satisfied that [the owner], and [the employer], had reasonable grounds to believe that [the worker’s] conduct was sufficiently serious to justify his immediate dismissal, and there were reasonable grounds for the employer holding that belief.”
The Commissioner stated: “[The employer] complied with the Code in respect to the dismissal of [the worker]. Accordingly, as the dismissal was consistent with the Code, [the worker] was not unfairly dismissed for the purposes of s.385 of the Act, and the Commission has no jurisdiction to deal with the Application.” The application was dismissed.