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Day 10 of 31 Days of Better Workplaces — today, a scenario no employer wants to face but many will: an employee claims unfair dismissal.

First, don’t panic. An unfair dismissal claim doesn’t mean the dismissal was unfair — it means someone has asserted that it was. The Fair Work Commission will assess that based on the facts. Your job is to make sure your facts are solid.

Understand the threshold first 

Unfair dismissal claims can only be made by employees who have completed the minimum employment period — typically six months, or twelve months for small businesses with fewer than fifteen employees. Casual employees with irregular patterns, contractors, and high-income earners above the threshold may be excluded. Know whether the claim is even eligible before you respond to it.

Don’t say anything in the heat of the moment 

The period immediately after a dismissal or a threat of a claim is when people say things they shouldn’t. Don’t engage in informal back-and-forth with the former employee, don’t discuss it with other staff, and don’t put anything in writing without thinking carefully about how it would read to a third party.

Pull your documentation together

Your strongest position is a clear paper trail: documented performance concerns, records of conversations, copies of any formal processes followed, the letter of termination. If the dismissal process was procedurally sound, that documentation is your defence.

Asssess the merit honestly

Was the dismissal for a valid reason? Was the process fair — did the person know what they were accused of, were they given an opportunity to respond, was the decision proportionate? These are the questions the Commission will ask. Answer them honestly to yourself before a commission application makes you answer them on the record.

Consider early resolution

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