A question of reasonableness: A review of the Small Business Fair Dismissal Code under the Fair Work Act 2009 (Cth)

The Small Business Fair Dismissal Code is unique to Australian labour law. It was introduced by the Australian Labor Party in 2009 with the introduction of the Fair Work Act 2009 (Cth). However, there has been little academic discussion about it. This article addresses this gap by examining the Code and the associated case law. It is timely to examine the Code as, it was reported, that soon after the 2019 federal election the Small Business Commissioner made calls to overhaul unfair dismissal laws as they apply to small business. Whether this will transpire into changes in the law is unknown at the time of writing. The article also explores the use of reasonableness as a legislative tool to curb the employer’s power to dismiss employees. The unfair dismissal regime from the United Kingdom is examined as a vehicle of comparison. The article focuses upon the interpretation of reasonableness in the Code, however, the principles discussed apply generally where reasonableness is adopted as a standard of review.