Small Business and Unfair Dismissal : A Review of the Australian Small Business and Family Enterprise Ombudsman’s Proposed Reforms

Australia has demonstrated an unusual obsession with unfair dismissal and smaller businesses. This is a perennial debate that has occurred for at least two decades which shows no signs of abating. With the re-election of the Morrison Coalition Government the calls for further reform in this area have become louder. Central to this debate is the Australian Small Business and Family Enterprise Ombudsman who have recently released a report. They recommend the making of wholesale changes to the area. Some of these changes are welcomed, however, some require further consideration whilst others should not be accepted. Alternatively, the Government can scrap the Small Business Fair Dismissal Code and relegate it to the dustbin of industrial relations history. It was a regulatory innovation at the time, and it did seem like a good idea in 2009 drawing support from small business. However, in effect it has meant that there are two unfair dismissal regimes which operate under the Fair Work Act 2009 (Cth). This is not ideal from a regulatory perspective and it creates complexity in an already complex system. This article focuses on examining the reforms proposed in the report released by the Australian Small Business and Family Enterprise Ombudsman. The examination reveals that in spite of the Ombudsman's best efforts certainty will not be granted to small business employers in this area. It may even have the perverse outcome of creating more complexity