The employee had been working as a casual swim teacher at a swim school since December 2017. In January 2021, a colleague from the same swim school came across a private Facebook group for local residents which the employee was also part of. 

In this Facebook group, a member of the public asked for recommendations for a swim school in the area. The colleague recommended the swim school which they both worked at. After she read through the comments of the post, she found that the employee had recommended a competing swim school.  

The colleague did not know that the employee also worked at a competing swim school and subsequently took a screenshot and forwarded this to their Manager. 

On 15 January 2021, the Manager and the employee had a phone conversation about the issue. The employee said she felt blindsided and had no intention to cause any damage to the reputation of the business and openly acknowledged making the recommendation. The Manager’s response to the employee was that her conduct was disloyal as she had been receiving JobKeeper payments from the business throughout 2020 and that she shouldn’t have made recommendations in favour of one swim school when she was working for multiple swim schools.  

The Manager informed the employee that her employment would end the following day, on 16 January 2021.  The Manager maintained the employee’s conduct was so serious it warranted summary dismissal. A separation certificate and letter were issued to the employee to confirm the dismissal.  The letter described the conduct as ”completely unsatisfactory and disloyal”.  

Small Business Fair Dismissal Code 

The swim school was a ‘small business employer’ for the purposes of the Fair Work Act 2009 (Cth) (the “Act”) because it employed fewer than 15 employees.  As a consequence, the business was covered by the Small Business Fair Dismissal Code (the “Code”). 

The Code states that 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. The Code confirms ”serious misconduct” includes theft, fraud, violence and serious breaches of occupational health and safety procedures.  

The Fair Work Commission (“the Commission”) was satisfied that the employer held a genuine belief that the employee had committed an act of serious misconduct which had the potential to cause damage to the business. However, the Commission did not consider the belief was based on reasonable grounds.  The Commission described the employee’s conduct as “foolish, naïve and ill-judged” yet did not consider the dismissal was consistent with the Code.  

The decision 

Noting the business failed to comply with the Code, the Commission applied the criteria set out at section 387 of the Act. The Commission concluded there was no valid reason for dismissal and an absence of procedural fairness.  As a consequence, the Commission determined the dismissal was unfair. 

Learnings for business 

Businesses need to ensure they follow a fair process when handling employee issues which could result in dismissal. This case highlights the importance of ensuring that you have a valid reason and afford the employee an opportunity to respond before terminating employment, even if you are a small business covered by the Code.  

How the Victorian Chamber can help 

Before considering disciplinary action or dismissal of an employee, call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222 to discuss and confirm your obligations as an employer. 

The Victorian Chamber can assist members with handling workplace matters and offer general advice on a range of workplace issues, including: 

• Award interpretation, classification and minimum entitlements 
• Disciplinary processes, performance management and termination 
• Personal illness and injury 
• Parental leave and flexible working arrangements 
• Redundancy 
• Occupational Health and Safety and WorkCover 

[2021] FWC 1952