How an employer goes about sacking a worker can be crucial to determining whether the worker receives compensation. If you own a small business, defined by Fair Work Australia as one that has fewer than 15 employees, and you wish to terminate an employee, you must strictly adhere to the Small Business Fair Dismissal Code.

Sacked martial arts instructor awarded thousands in compensation

A recent case decided in the Fair Work Commission demonstrates that although there was a valid reason for the dismissal of an employee, the method the employer used resulted in the sacked worker being unfairly dismissed and receiving thousands of dollars in compensation. (See Saar Markovitch v Krav Maga Defence Institute Pty Ltd T/A KMDI [2019] FWC 7365.)

The case involved a martial arts instructor whose job was to supervise a Krav Maga martial arts class at a Bondi gym.

Krav Maga is a high-risk self-defence form of martial arts developed by the Israeli army that is designed to incapacitate an attacker. It involves kicks to the groin, elbows to the face, painful wrist holds and blows designed to damage sensitive parts of the body. It needs to be closely supervised by certified instructors for the safety of those undertaking the class.

Employee concedes class supervision was inadequate but claims dismissal is unfair

The Fair Work Commission heard the employer had used a mobile phone to remotely access CCTV vision that had been recently installed at the gym. He saw the instructor was using his mobile phone and not giving the class his full attention.

The employer went back over earlier footage and found the instructor spent a substantial amount of work time on his mobile phone, away from the class. The employer decided it was a serious and unacceptable breach of his duty and the safety of the clients, and sacked him.

The instructor admitted he was wrong to use his mobile phone while supervising the class, but claimed the way he was terminated was wrong and it amounted to unfair dismissal under Division 3 of the Fair Work Act 2009.

Neglecting to follow Small Business Fair Dismissal Code is costly

The sacked instructor, an Israeli citizen, claimed under the Fair Work Act that the dismissal was harsh, unjust and unreasonable. He said it left him unemployed in a foreign country.

The Fair Work Commissioner found the employer had valid grounds to dismiss the instructor. However, he ruled the Small Business Fair Dismissal Code had not been followed and that the sacking was harsh and unreasonable.

In his decision, the Commissioner stated that the employer did not provide an opportunity for the worker to explain his conduct, the worker didn't have a support person present when he was confronted with the CCTV footage, and the sacking was a summary dismissal rather than a dismissal with notice.

Therefore, even though there was a valid reason for the instructor being terminated, he was awarded almost $7,000 for unfair dismissal.

Seek legal advice if unsure about lawful dismissal procedures

This case demonstrates that employers need to be careful about how they terminate their employees and ensure they follow the correct procedure.

If you own a small business, you must make certain that you follow the Small Business Fair Dismissal Code. This code is also a good starting point for larger businesses (for which there is no code). In either situation, it's highly advisable to obtain expert legal advice before terminating an employee.

You can download the Small Business Fair Dismissal Code & Checklist from the website of the Fair Work Ombudsman.

Emily Wittig
Unfair dismissal
Stacks Collins Thompson

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.