Size of employer's enterprise & human resources specialists

See Fair Work Act 2009 s.387(f) and s.387(g)

Sections 387(f) and (g) look at factors that might have impacted the ability of the employer to follow a fair process in effecting a dismissal. Whether the employer was a small business or a larger employer will be relevant.

For example, a small business may not have the same resources on hand as a larger business which may employ managers or specialist human resources staff.

While there is acknowledgement that small businesses are genuinely different in nature both organisationally and operationally, the procedures followed in dismissing a person cannot be 'devoid of any fairness'.[1]

The Fair Work Commission has observed that 'no employer should ever consider' that ss.387(f) and (g) could 'be used as a shield behind which to hide when they had engaged in conduct which was improper, belligerent and bullying'.[2] The Commission has commented that '[c]ommon sense courtesies of conduct ought to exist in any workplace, whatever the size'.[3]

Dismissal was unfair

Small company with no human resources expertise

Pergaminos v Thian Pty Ltd t/as Glenhuntly Terrace, PR920123 (AIRC, Lacy SDP, 16 July 2002).

The employee was employed as a cook in a special needs house. Due to a downturn in business, there was no money to pay the employee's entitlements. The employer was a small business. It was found that the size of the business affected the procedures followed in dismissing the employee. It was found that the termination was harsh and unjust and ordered 4 weeks' compensation.

Dismissal was NOT unfair

Large organisation with dedicated human resources specialists acted satisfactorily

 Oakley v Department of Employment and Workplace Relations, PR952429 (AIRC, Raffaelli C, 15 October 2004).

Permission to appeal granted and appeal upheld in (2004) 137 IR 321.

The size of the employer had a significant and positive impact on the procedures it followed leading to dismissal. The absence of dedicated human resources specialists or expertise was not relevant as the employer had dedicated human resources specialists and expertise. The employee's application was dismissed.

Small business with lack of human resources expertise contributed to deficiencies in dismissal process

Hall v Aristoc Offset, PR916208 (AIRC, Hamilton DP, 5 April 2002).

The employer was a small business owner. Due to a downturn in business the employer determined it would need to make redundancies.

It was found that there were deficiencies in relation to consultation and notification of the dismissal. The deficiencies were due to the size of the business and the lack of human resources expertise. However, the failure by the employer to correctly follow procedures would not have changed the outcome, and the employee suffered no hardship due to the dismissal, As such, the termination was not harsh, unjust or unreasonable and the application was dismissed.