Wood v Amigoss Preschool and Long Day Care Co-Operative Ltd TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – summary dismissal – ss.388, 394, 396 Fair Work Act 2009 – applicant dismissed after five allegations of serious misconduct made against her – applicant arrested by NSW Police in relation to one of the allegations – charges relating to that allegation dismissed by Local Court of New South Wales – applicant submitted, inter alia, Small Business Fair Dismissal Code (SBFD Code) not complied with and respondent did not properly investigate allegations because a decision to dismiss was already made – respondent argued it held reasonable grounds to dismiss as there was a belief the conduct in question had occurred – respondent also submitted that the belief that two of the five allegations made against the applicant were genuine – respondent further contended that there was no need to consider the factors listed in s.387 of the Fair Work Act 2009 as a finding of compliance with the SBFD Code swept away such considerations – Commission observed that the respondent had 13 employees at the time of the dismissal – Commission noted 3 other employees did not have any regular patten of employment – respondent contended that the summary dismissal was within the SBFD Code – Commission noted in assessing compliance with ‘summary dismissal’ section of the Code, it is necessary to determine whether respondent genuinely held a belief that the conduct was sufficiently serious to justify immediate dismissal and the belief was objectively reasonable [Thrash] – Commission held that dismissal was not consistent with the SBFD Code – there were no reasonable grounds for any belief that the applicant had committed the conduct which substantiated the allegations – found respondent had not investigated allegations underpinning serious misconduct finding – found respondent wanted allegations to be sustained after failing to negotiate applicant’s resignation – observed respondent’s substantiation of serious misconduct allegations without investigation was reckless – observed respondent’s actions should trouble conscience of individuals involved – Commission also held that two of the allegations would not, even if properly substantiated, provide grounds for summary dismissal – no valid reason for dismissal – respondent made erroneous findings of serious misconduct towards the applicant – dismissal found to be harsh, unreasonable or unjust – applicant initially sought reinstatement – reinstatement was not possible as the applicant did not hold a current Working With Children Check – compensation ordered. U2020/15433 [2022] FWC 2925 Cambridge C Sydney 3 November 2022
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