TERMINATION OF EMPLOYMENT – performance – Small Business Fair Dismissal Code – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission found the employee had been unfairly dismissed and ordered compensation of $70,000 – appellant advanced six grounds of appeal including that the Commission erred in failing to determine or be satisfied in accordance with s.385(c) of the FW Act that the dismissal was not consistent with the Small Business Fair Dismissal Code (Code); and by failing to decide in accordance with s.396(c) that the dismissal was not consistent with the Code before considering the merits of the applicant’s application – ‘the requirements of this section [ie s.385] … depend upon the Commission itself being satisfied of the state of affairs referred to’ [Clermont Coal P/L v Brown] – not in dispute that TIOBE was a ‘small business employer’ at the time of the employee’s dismissal – at first instance the Commissioner indicated she was satisfied the appellant was a small business, but concluded the Code did not apply because the appellant did not contend that the dismissal was consistent with the Code – appellant submitted that the fact TIOBE may not have contended that the dismissal was consistent with the Code did not relieve the Commission of the statutory obligation to actively consider and determine whether the Code was complied with – further submitted that the Commission has an obligation to actively consider and determine the question of compliance with the Code in circumstances where the employer is a small business – the Full Bench agreed with this proposition – the Commission has an obligation, in all matters, to satisfy itself that it has the requisite jurisdiction to perform a particular function [Hewitt v Topero Nominees] – the Commission made an error in not first considering whether the dismissal was consistent with the Code before turning to deal with whether the dismissal was unfair – Ryman considered – arguable that the error could have made a difference to the outcome – Full Bench found it was in the public interest to grant permission to appeal – permission to appeal granted – appeal upheld on the basis of the error identified – the Decision and Order at first instance quashed – application for an unfair dismissal remedy referred back to Bissett C for rehearing – not necessary to consider the remaining grounds of appeal, however given the nature of the issues raised the Full Bench found it appropriate to make some general observations regarding the Commission’s obligation to provide a fair hearing – Commission obliged to perform its functions and exercise its powers in a manner that is fair, just and quick – Members have a positive duty to provide appropriate assistance to litigants in person whether they be applicants or small business respondents – the degree of assistance which must be afforded depends on the context – the duty to assist may extend to issues of law as well as procedure – plainly necessary to balance the interests of litigants who represent themselves with the need to afford procedural fairness to other parties – in the context of the present matter it would have been appropriate for the Commission to have drawn the Code to the parties’ attention (and provided them with a copy of the Code) and inquired of the appellant whether it submitted that the dismissal was consistent with the Code. Appeal by TIOBE P/L t/a TIOBE against decision and order of Bissett C of 19 July 2018 [[2018] FWC 4173], [PR609148] Re: Chen
…
