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FWC ‘failed to consider we are a small business’

Piggy bank, size difference

A small data firm has secured temporary relief from a controversial unfair dismissal verdict, arguing among other things that the Commissioner had failed to consider its size meant it lacked specialist HR expertise.

My Business readers were up in arms last month after marketing analytics firm TIOBE was ordered to pay $70,000 in compensation to a former employee, despite it insisting it had issued numerous performance warnings prior to her sacking.

Under Fair Work Commission (FWC) rules, neither party is entitled to simply have an appeal heard, but instead must apply to do so, outlining their reasons for appealing the original verdict.


TIOBE presented a detailed appeal to the FWC, arguing six key points in relation to the finding that it had unfairly dismissed the employee.

One of these is that “the Commissioner erred in law by failing to take into account or failing to give any, or any sufficient weight, to the degree to which the absence of dedicated human resource management specialists or expertise in the Appellant’s enterprise would be likely to impact on the procedures followed in effecting the applicant’s dismissal (in accordance with Section 387(g) of the Act).”

This point is a common gripe of particularly small businesses, where operational and budgetary constraints mean that dedicated HR resources are minimal if available at all.

However, FWC deputy president Ian Masson did not take this on board when analysing TIOBE’s objections.

He instead focused on a separate point of contention – that the Commissioner had “erred in failing to determine or be satisfied that the applicant’s dismissal was not consistent with the Small Business Fair Dismissal Code… before considering the merits of Ms Chen’s application”.

Mr Masson concluded that “there is an arguable case, with some prospects of success, that the Commissioner has fallen into jurisdictional error in not considering and determining whether the Code had been complied with by the Appellant.”



As such, a stay on the payment of compensation to the former employee was given, until a formal appeal is heard.

TIOBE will nevertheless still be forced to stump up the $70,000, with the stay order conditional on it contributing the funds into a separate interest-bearing account until the appeal verdict is handed down.


Adam Zuchetti

Adam Zuchetti

Adam Zuchetti is the editor of My Business, and has steered the publication’s editorial direction since early 2016. 

The two-time Publish Awards finalist has an extensive journalistic career across business, property and finance, including a four-year stint in the UK. Email Adam at This email address is being protected from spambots. You need JavaScript enabled to view it.

FWC ‘failed to consider we are a small business’
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