The workplace investigation is an important tool used by a business in making a determination as to the most appropriate response to a serious allegation made against one of their workers. 
These allegations can involve anything from theft, sexual harassment, physical or psychological violence, bullying, a serious work health & safety breach or any conduct that could be defined as serious misconduct.
Workplace investigations should as far as possible be conducted by an independent party. An investigation is defined as a civil proceeding. Accordingly the standard of proof required is “on the balance of probability”.
Where terminations are a likely outcome affecting the earning potential of the respondent, the Briginshaw standard should be leveraged which ensures that the “balance of probability” is determined on compelling evidence that persuades the investigator or panel of its occurrence or existence.
The investigator should be familiar with the rules of evidence, canvas and weigh up all the available evidence and be open minded throughout the process. The respondent should be offered a written overview of the allegation made and a high level summary of the evidence available. They should also be given a fair opportunity to respond to the allegation and be allowed to have a support person with them during any meetings.
Lastly, a well conducted investigation not only ensures procedural fairness to the parties, it also protects the company from unfair dismissal or related court proceedings should a termination be the outcome. Conversely it also protects the business from the applicant who makes the allegation by claiming the business was negligence in not responding responsibly to the complaint.
As always..if in doubt, ask an expert!

Consulting with your employees on all workplace related matters does not only constitute best management practice, it’s also the Law. Being an employer by default mandates that you will be functioning in a business environment that is subject to constant change. Change is a reality of business life. Accordingly, to ensure ‘fairness’ and to ensure that this ‘change’ is managed in the most effective manner, Fair Work Australia has put in place a series of consultation requirements that all employers must adhere to. If you do not consult with your employees you may find yourself on the wrong end of the law.

Whether the change under consideration relates to performance issues, behavioural matters, a redundancy or dismissal; the employer must consult with the employee in a manner that is considered by a 'reasonable person' to be fair.  This is true irrespective of the technical terms under which the employment is facilitated, e.g. Modern award or employment contract etc.

As an example, a documented Fair Work Australia case made it clear just how important it is to ensure employers comply with consultation clauses in Modern Awards when implementing redundancies.  In Wang and Others v Specialty Fashion Group Ltd (2011), five employees were made redundant and informed of this by their employer in June 2011. While the employer contended that the redundancies were genuine, the employees disagreed and lodged an unfair dismissal claim with Fair Work Australia (FWA). 

The employees were covered by the Textile, Clothing, Footwear and Associated Industries Award, which mandated consultation. The clause required the employer to:
  • give employees advance notice of any significant workplace change (including redundancies); and
  • allow employees an opportunity to discuss how any adverse impact on them could  be avoided.
In its investigation, FWA found that the only time the employees were consulted throughout the redundancy process was when they were told by their employer that the decision had already been made.  Therefore, as the employer had not complied with the consultation clause in the Award, by failing to give the employees a chance to raise any issues they had with the decision, FWA found that the redundancies were not genuine.  This was regardless of the commercial reasons behind the redundancies. If the employer had made the effort to consult with their employees prior to the announcement of redundancy, than the outcome of the case would have been very different.
Another recent example is that of a dismissal made as a result of an employee telling his manager to “get f..ked”. When Adam Haliman's boss asked him to work on the weekend, feeding tuna in the fishery where he had been employed for six years, he said no. More to the point, he told his manager to "get f---ed". "I'm not working on the f---ing weekend," he added. A few days later he was not working at all, having been fired from his $20-an-hour job in Port Lincoln, South Australia, for swearing at his boss.
When the matter was brought before Fair Work Australia, the tribunal found in favour of the fish feeder. The primary reason for this was that the employer had not made a genuine effort to investigate or consult with the employee to determine the background to the incident. Swearing at your employer is not necessarily a sackable offence with the workplace relations tribunal finding the summary dismissal of Mr Haliman by Marnikol Fisheries was harsh and unjust (unfair). While the language he used was concerning, the tribunal said it was telling that he swore at his manager for "added emphasis" rather than as a form of abuse. Also relevant were his years of good service and his need to be home with his pregnant partner, who was due to give birth.
A documented consultation policy would have ensured that, if a summary dismissal was warranted, it was based on the right criteria. An emotional response to a heated scenario won’t hold water in front of the workplace tribunal.
So the bottom line is have a workplace consultation policy and related procedure so you know how to “Consult with your employees”. This doesn’t necessarily need to be a highly formalised process but what is mandated is that the process is “fair”, not only to the employee but also to the employer.
To ensure you comply with the consultation requirement when implementing change such as redundancies, or addressing a behaviour or performance issue you may want to consider the following:
  1. Provide your employees with a letter that a) clearly sets out all the issues , b) explains exactly the affect of these ‘issues’, and c) asks for their input on issues and feedback.
  2. Hold a meeting with the employee/s concerned to obtain their response to the letter.
  3. Hold a second meeting with each employee at least 24 hours later, in which you  explain your decision regarding their employment (based on the initial consultation) and confirm that decision (and the reasons for it) in writing.
The moral of the story is that it is not only important to consult with your employees, but also to be ‘seen’ to be consultative.

All employers will need to ensure that they are acting within the intention of the Fair Work Act and thereby limiting their exposure to unfair dismissal claims.

Who cannot claim?

1. Exempt Employees: Employees who earn more than the high income threshold, which in 2018 is $142,000 base salary per year, in the main are not eligible to make an unfair dismissal claim under the act. (There are some exceptions to this

2. Contractors, staff employed less than 6 months (or 12 months for small business)

3. Staff on probation, employees dismissed for serious misconduct, casual employees, employees assigned for a fixed term, task or season.
Minimising the risk:

When terminating an employee it is important that the employer:

1. Has valid reason: The employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. Any other reason may fall into the category of unlawful dismissal.

2. Demonstrates procedural fairness: The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

3. Demonstrates proportionality: Does the crime fit the punishment? The act of dismissal must be proportionate to the operational risk to which the employee’s conduct or poor performance exposes the employer. Otherwise, the dismissal may be deemed to be “harsh”.

4. Understands what constitutes gross misconduct: Acts of gross misconduct include theft, fraud, verbal violence include abuse, physical violence, breaches in confidentiality, breaches of the OH&S act etc are subject to summery dismissal with no notice period required.

If you are a small business then you may which to review the fair dismissal code provided by the Fair Work Ombudsman which provides a procedural checklist to ensure a fair dismissal. Employees, who wish to make an unfair dismissal claim, must do so within 60 days of the dismissal.

Terminating an employee is often a traumatic and difficult time for all concerned.  This is not only from an interpersonal basis but also from a legal perspective. A wrong decision or interpretation can catapult you into the world of courts, significant legal expenses, fines, reinstatements and most importantly loss of focus on the business imperatives. This article therefore attempts the provide clarity as to your obligations, as a small business, and how to ensure that the termination is enacted in a manner that best protects your interests against unfair dismissal claims.

What constitutes a small business?

As a national workplace employer (click"}">here to check your jurisdiction), a small business is treated differently to all other enterprises. Being clear on whether your business is classified as a “small business” is therefore essential to the options available to you.


Under the Fair Work Act, a small business is defined as any business with a headcount of fewer than 15 employees.  Note however that a recent ruling has defined employees as any systematic workers and may include casual employees and contract staff.

Dismissal or Redundancy

Determining whether a termination is a dismissal or a redundancy is an important distinction to make in that it reflects directly on your obligations as a small business.

A good way to answer this question is to ask if the termination is a consequence of the position significant changing, or disappearing altogether, or whether the employee is not meeting the requirements implicit in Job description that defines the position. The former will be defined as a redundancy and the latter a dismissal. There is a simple Fair Dismissal Code checklist (available below) for small business employers to follow to ensure that they do not unfairly dismiss an employee. If an employer has strictly followed the checklist then the dismissal will be deemed to be fair.Under the Fair Dismissal Code, employees of small businesses cannot make a claim for unfair dismissal in the first 12 months after being hired. Employees of larger businesses are able to make a claim for unfair dismissal at 6 months.

Types of Dismissal

Summary DismissalThere are essentially two types of dismissal. The first, “Summary” is where the employee’s conduct has been proven on reasonable grounds to be so serious that it justified immediate dismissal.  In such circumstances, it is fair for an employer to dismiss an employee without notice or warning. Serious misconduct includes theft, fraud, violence (including verbal) and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police.

Other Dismissals

In all other cases, the small business employer must give the employee a reason why they are at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.


Who cannot make an Unfair Dismissal Claim.

The following small business employees are not allowed to make unfair dismissal claims:

  1. Employees who have worked for the business for less than 12 months.
  2. Employees who have worked as irregular casual employees.
  3. Employees who are guaranteed a salary of over $108,000.
  4. Employees who have been dismissed due to business downturn or their position is no longer needed. See redundancy below.

Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning/(s), a statement of termination or signed witness statements.

Small Business Fair Dismissal Code.Click"}">here for code.

The Fair Work Ombudsman has provided a checklist for small employers to ensure that the termination is fair. If the employer follows the checklist, then the termination will be deemed as fair. Click here to download the small business fair dismissal code.


Redundancy & small business

A redundancy is where you dismiss the employee because you didn’t require the person’s job to be done by anyone because of changes in the operational requirements of the business? A redundancy must be genuine. If you were to rehire someone in the same position at a later time, the termination would not be classified as a genuine redundancy.

In order to establish grounds of genuine redundancy, you must prove three things. 

  1. Firstly, you must prove that you dismissed the employee because you no longer required the person's job to be performed by anyone due to changes in the operational requirements of your business.   Some examples of changes in operational requirements that might establish genuine redundancy are set out as follows; a) A machine is now available to do the job performed by the employee, b) You are restructuring your business to improve efficiency and you decide to redistribute the tasks done by a particular employee between several other employees. c) Your business is experiencing a downturn and therefore you only need 3 people to do a particular task or duty instead of 5. In this kind of scenario, the process for selecting which employees will be retrenched is irrelevant, so long as the criterion is lawful. For example, in the above scenario, you could choose the 2 employees to go on the basis of poor performance but not because one is pregnant and the other is on WorkCover.
  2. Secondly, you must prove that you have complied with any obligation to consult with the employee about the redundancy. Such an obligation may arise under a modern award or enterprise agreement. You do not have to consult with the employee about the redundancy unless a modern award or enterprise agreement requires you to.  
  3.  Finally, you must prove that it would not have been reasonable to redeploy the employee within your business or a related business.  Redeployment means offering the employee another job, even if they do not want to take it. This does not mean you have to create jobs - you only have to offer redeployment to jobs that are vacant.  If there are no suitable positions available for the employee (i.e. positions that match their qualifications or experience), then redeployment is not reasonable. 

Small Business may be Exempt

Under the National Employment Standards (NES), an employer who is defined as a small business employer is not required to provide redundancy pay. However, an employer may have redundancy pay obligations under an industrial instrument or contract of employment.

Important! Some modern awards and pre-modern awards require certain small business employers to pay redundancy to their employees. see Exceptions below.


There are some small business employers who are not exempted from providing redundancy pay when they make an employee redundant. For example, some modern awards require certain small business employers to pay redundancy to their employees.

Small business employers should carefully check their requirements in relation to redundancy pay and seek professional advice if unsure of your obligations.

Pre-modern award entitlements to redundancy

Prior to the commencement of modern awards, some pre-modern awards (NAPSAs and Division 2B awards) provided redundancy pay for employees of a small business. This mainly occurred in the state of South Australia.

Most modern awards now contain transitional provisions which will preserve the small business redundancy entitlements from a"}">NAPSA or Division 2B State award until 31 December 2014, if they provide for redundancy pay in excess of an employee’s entitlement under the NES.

Where a small business employer is covered by a modern award which contains this transitional provision and the employer would have had an obligation to pay redundancy pay under a NAPSA or a Division 2B State award, then the employee will continue to be entitled to redundancy pay in accordance with the NAPSA or Division 2B State award if it provides an entitlement that exceeds the employee’s entitlement under the NES.

Modern award entitlements to redundancy

Some modern awards require certain small business employers to pay redundancy to their employees. These redundancy obligations apply in industries where historically there was no small business redundancy exemption.

The following are some examples of modern awards which require certain small business employers to pay redundancy pay:


Redundancy pay obligations in an agreement or contract of employment

An applicable agreement or contract of employment may also provide for a more favorable redundancy pay entitlement than the NES, including by extending this entitlement to employees of a small business employer.