If a small business let you go, it is worth finding out where you stand. Call 1800 UNFAIR (1800 863 247). The first call is free, with no obligation.
What counts as a small business
For these rules, a small business is one with fewer than 15 employees, counted as a simple headcount of all employees, including regular and systematic casuals.
The longer waiting period
Employees of a small business need to have worked there for at least 12 months before they can claim unfair dismissal, compared to 6 months at a larger employer. If you were let go before you hit 12 months, you generally cannot bring an unfair dismissal claim, though you may have other options worth discussing.
The Small Business Fair Dismissal Code
Small employers have a special set of rules called the Small Business Fair Dismissal Code. If the employer genuinely followed the Code, the dismissal is treated as fair. If they did not, it is not protected, and that is where a lot of claims succeed.
The Code works in two ways:
Instant dismissal. A small employer can dismiss you without notice if they believe, on reasonable grounds, that your conduct was serious enough to justify it, things like theft, fraud, or violence. But they need reasonable grounds for that belief, which usually means they actually looked into it before acting.
Other dismissals. For everything else, the Code requires the employer to give you a valid reason, warn you (preferably in writing) that your job is at risk if things do not improve, and give you a real chance to fix the problem, including any training or support you would reasonably need. Skipping the warning, or not giving you a genuine opportunity to improve, is a common failure.
One detail worth knowing: in a discussion where dismissal is on the table, you are allowed to bring a support person, though under the Code that person cannot be a lawyer acting professionally.
Where small employers slip up
The most common problems we see: no written warning, no real chance to improve, no proper investigation before an instant dismissal, or the employer cannot actually show they followed the Code when challenged. The employer has to be able to produce evidence of compliance. Many cannot.
The 21 day deadline
You generally have 21 days from the day the dismissal took effect to lodge. The Commission rarely extends it, so act quickly.
Find out if the Code was really followed
Whether a small business followed the Code is often not obvious to the person who was dismissed. It turns on what warnings were given, what investigation was done, and what the employer can actually prove. That is worth talking through.
Call 1800 UNFAIR (1800 863 247). The first call is free and there is no obligation. Monday to Friday 9am to 9pm, weekends 9am to 5pm.
We are paid agents, not lawyers. We represent employees at the Fair Work Commission and we will tell you honestly whether you have a case.