Responding to an unfair dismissal application: an employer's first steps

An unfair dismissal application is not a finding. It is the start of a process in which a former employee asks the Fair Work Commission to examine a dismissal, and in which the employer is invited to give its own account. The documents that arrive from the Commission usually include the employee's application, a covering letter, and details of the next step in the matter — commonly a conciliation already listed for a particular date and time.

Three things follow immediately, and they run in parallel rather than in sequence. The employer needs to establish the date by which its response is due, because the response window is short and is measured from the Commission's contact rather than from the day the file reaches the right desk. It needs to preserve the record of the employment and the dismissal, because the contemporaneous record — as it stood at the time — will often be central to how the matter is assessed. And it needs to form an early, honest view of the case, covering both whether the application is one the Commission can deal with and whether the dismissal itself can be defended on its facts.

Those two questions are distinct, and conflating them can lead to an inaccurate response. A threshold objection asks whether the Commission has power to deal with the application at all. The merits ask whether the dismissal was harsh, unjust or unreasonable. An employer can be confident about the second and still have no objection available on the first.

Speed and accuracy are not in tension here. A prompt response is required, but the response is a document the employer will be held to. It should state a position the contemporaneous record supports, and it should not overstate the strength of that record in order to be filed quickly.

Record when and how the Commission's documents were received, and by whom. In organisations where correspondence arrives at a general inbox or a registered office, internal transmission delay can consume part of the response period before the right person sees the documents. Note the receipt details in a file that will hold the whole matter.

The Commission's current guidance is that the employer must respond within 7 days using Form F3. Express the obligation in those terms rather than characterising the period independently, diarise it, and treat the date stated in the Commission's correspondence as the operative due date. Where that date is genuinely not achievable, the correct step is to contact the Commission promptly rather than to allow it to pass without explanation.

Name one person to coordinate the response. That person does not have to be the decision-maker who effected the dismissal, and there are advantages in it not being them. What matters is that a single person controls the chronology, the document collection, the contact with advisers and the lodgement. Notify the people who genuinely need to know: the decision-maker, the relevant senior manager, and any internal or external adviser who will assist. Where the organisation holds management liability, employment practices liability or a similar policy, check the notification conditions early, because those policies frequently require notice within a defined period and may restrict the incurring of costs or the agreement of settlement terms before the insurer has been notified.

Resist the instinct to circulate the application widely. The material is sensitive, it names a former colleague, and broad internal distribution creates both privacy exposure and a risk that accounts are influenced before they are recorded.

Do not delay the response while attempting to assemble every potentially relevant document. At the Form F3 stage, the Commission asks only for copies of documents that are directly relevant to the claim, such as the dismissal letter; the Commission may ask later for further information, documents or evidence. A late response is a procedural problem in its own right, and it is not cured by the completeness of the file behind it.

Once an application is on foot, routine deletion and archiving should stop for material connected to the employee and the decision. Preservation is not the same as production: the point is to ensure the record still exists and remains in its original form when it is later required.

The material likely to matter includes:

• the employment contract and any variations, together with any letters of appointment or promotion
• the modern award or enterprise agreement relied on as covering the employee, and the basis for that view
• position descriptions and any documented changes to duties
• the policies and procedures said to apply, in the versions in force at the relevant time
• performance and conduct records, including appraisals, improvement plans and file notes
• warnings, show-cause correspondence and notes of meetings
• correspondence and workplace messages relevant to the events in issue
• investigation material, including terms of reference, records of interview and any report
• consultation, selection and redeployment records where redundancy is raised
• the termination letter and any related correspondence
• payroll and service records establishing dates of engagement, remuneration and final payments
• contemporaneous notes made by managers at the time
• records bearing on the employer's size and whether it had dedicated human-resources expertise available

Records should be preserved as they are. Do not create documents after the event and present them as contemporaneous, do not rewrite or backdate notes, and do not tidy a file so that it reads better. Where a manager's recollection adds to an incomplete record, it can be captured in a note that is plainly dated now and described as a later recollection. The difference between that and an improved file note is the difference between a supportable case and a serious credibility problem.

Some of the material will be confidential, some will contain personal information about third parties, and some may attract legal professional privilege. Privilege is not created by copying a lawyer into an email. It depends on the dominant purpose for which a communication or document was made — broadly, obtaining or giving legal advice, or use in the litigation. Operational records, investigation material prepared for management purposes and payroll data do not become privileged because a lawyer has since seen them. Where privilege matters to the strategy, get advice before assuming it applies.

The response has to answer the application that was actually made, not the case the employer expects. Read the application closely and identify, in the employee's own framing: the dismissal alleged and the date given for it; the account of the events leading to it; the remedy sought, whether reinstatement, compensation or both; the award or enterprise agreement said to cover the employment; and any allegation of procedural unfairness, such as an absence of notice of the reason, no opportunity to respond, or refusal of a support person.

Then look for the material that bears on jurisdiction: the dates of engagement and dismissal, the description of the employer, the employment status asserted, and anything indicating the remuneration level or the basis of coverage. These are often the parts of an application that bear on whether a threshold objection is available.

Finally, compare the application against the employer's contemporaneous record and note where they diverge on dates, sequence, what was said in meetings, and what documents were provided. Build a factual chronology as you go — a dated list of events, each tied to the document or witness that establishes it. A chronology of that kind is far more useful, at every later stage, than an argumentative narrative written to persuade. It also exposes gaps in the employer's own material at a point where something can still be done about them.

An objection is a contention that the application cannot proceed, or cannot proceed in the form advanced. A jurisdictional objection contends that the Commission does not have power to deal with the application. Believing that the dismissal was fair is not a jurisdictional objection; it is a defence on the merits, and it belongs in a different part of the response.

Whether an objection is available depends entirely on the facts. Matters that may, depending on the circumstances, give rise to a threshold or jurisdictional issue include:

• whether there was a dismissal within the statutory meaning at all, for example where the employee resigned and the employer disputes that the resignation was forced
• whether the application was made within the 21-day period, an extension being available only in exceptional circumstances
• whether the employee had completed the minimum employment period applicable to the employer
• whether the employee was a person protected from unfair dismissal, including whether an award or enterprise agreement covered the employment and, if not, whether earnings were below the high-income threshold applying at the relevant time
• whether the dismissal was a case of genuine redundancy
• for a small business employer, whether the dismissal was consistent with the Small Business Fair Dismissal Code

That list is not exhaustive, and the current Form F3 and the Fair Work Act should be checked against the facts of the particular matter rather than against a general list. The Commission's own guidance notes that the timing of any jurisdictional hearing depends on the objection: an out-of-time objection is generally dealt with before conciliation, while other objections are usually dealt with after it, and some are determined at the main hearing.

Two disciplines apply. First, an objection should be raised only where it has a proper factual and legal basis on the available evidence. Second, identifying an available objection does not relieve the employer of the need to respond substantively. If the objection fails, the matter proceeds on the merits, and a response that dealt only with jurisdiction leaves the employer with no articulated case on the dismissal itself.

Where the Commission considers whether a dismissal was harsh, unjust or unreasonable, section 387 of the Fair Work Act requires it to take into account a defined set of matters. In accessible terms, those are: whether there was a valid reason for the dismissal related to the person's capacity or conduct, including the effect on the safe and efficient operation of the enterprise; whether the person was notified of that reason; whether they were given an opportunity to respond to any reason related to their capacity or conduct; any unreasonable refusal to allow a support person to be present at discussions relating to the dismissal; whether the person had been warned about unsatisfactory performance before dismissal, where the dismissal related to that performance; the degree to which the employer's size would be likely to affect the procedures followed; the degree to which the absence of dedicated human resource management specialists or expertise would be likely to affect those procedures; and any other matters the Commission considers relevant.

Two points about how these operate. They are matters that must be taken into account, weighed together — not a checklist where a certain number of ticks produces a result. And the last of them is genuinely open: matters such as length of service, the employee's personal and economic circumstances, the proportionality of dismissal to the conduct, and consistency with how comparable cases were treated in the same workplace can all bear on the outcome.

Sit the employer's material against each matter honestly. If the reason was conduct, ask what the evidence establishes about the conduct itself, not merely what was believed. If the reason was performance, identify the warnings and what they said. If the case involves capacity, consider what medical or operational material was before the decision-maker. If redundancy is in issue, the question is whether it meets the statutory description of a genuine redundancy, which turns on the job no longer being required, compliance with any consultation obligation in an applicable award or agreement, and whether redeployment within the employer or an associated entity would have been reasonable — a topic we address in detail in our guide to genuine redundancy, consultation and redeployment. Where serious misconduct is alleged, the seriousness of the allegation affects the quality of evidence required and does not remove the need for a fair process.

This assessment is retrospective. It is an evaluation of what was done and what was recorded, not of what the employer would do now. That is precisely why the discipline described in our guidance on managing termination risk through fair and documented processes and on performance management and procedural fairness matters long before any application arrives.

Use the current approved Form F3 and follow the Commission's current lodgement and service instructions, including the requirement to serve a copy of the response on the other parties unless the Commission directs otherwise. Forms and filing arrangements change; check the Commission's Form F3 page rather than reusing a copy held from an earlier matter.

As to content, the response should answer the application actually made, question by question, leaving nothing blank. It should state any properly available objection clearly and identify the basis for it. It should set out the employer's material factual position — what happened, when, and on whose account — and should distinguish between facts the employer can prove, allegations it disputes, and submissions about how the matter should be characterised. It should identify the employer's position on the remedy sought, including whether reinstatement is opposed and why.

Tone is part of substance. Avoid language that is inflammatory, dismissive or demeaning about the former employee, and avoid allegations that the employer cannot support. Everything asserted should be consistent with the contemporaneous record; an assertion the file contradicts damages the employer's position more than the omission would have. Before lodgement, have the response checked by someone who has read the underlying documents, and confirm that it is authorised by a person with authority to make the statements it contains.

Limit commentary about the proceeding. Discussion of the matter should be confined to those with a genuine need to know, and there is rarely a good reason for any broader internal announcement. Be accurate about confidentiality rather than overstating it: not every document in an unfair dismissal matter is confidential, and settlement discussions, without-prejudice communications and material covered by a specific Commission direction or a settlement term are governed by different rules. Assuming a blanket obligation, and telling staff there is one, tends to be both wrong and unhelpful.

Adverse treatment of anyone connected with the application is a serious and separate risk. Current employees who may be witnesses, and who may have supported the former employee, should experience no change in how they are managed because of the proceeding.

Witness accounts need care. Managers and staff who have relevant knowledge can be asked what they recall and their accounts can be recorded, but accounts must not be coached, aligned or prepared collectively. Where several people are spoken to, speak to them separately and record what each says in their own terms. Preserve evidence, but do not launch an unstructured internal inquiry after the fact: a second, informal investigation conducted under time pressure can produce material that undermines the original decision.

Otherwise, keep normal operational arrangements in place. The role has usually been filled or absorbed by this point, and there is no reason for the business to hold arrangements in suspense while the matter proceeds — subject to any specific advice where reinstatement is genuinely in issue.

Conciliation is the Commission's principal early step in unfair dismissal matters. It is a voluntary, informal and confidential process, generally conducted by telephone by a trained Commission conciliator who is independent of both parties. The conciliator does not decide anything and does not determine who is right; the role is to help the parties understand the issues and explore whether an agreed resolution is possible. Any outcome the parties both agree to is available, which is a wider range of outcomes than the Commission itself could order after a hearing.

Useful preparation is specific. Bring a concise chronology and the small number of documents that actually matter — typically the contract, the applicable instrument, the warnings or investigation material, and the termination letter. Identify, candidly and internally, the strongest and weakest parts of the employer's position; considering the weaknesses as well as the strengths supports realistic preparation and a settlement authority set on an informed view of the risk. Anticipate the factual questions the conciliator is likely to ask about the process followed.

Decide who will attend, and confirm that they can properly represent the employer. Be clear about settlement authority before the conciliation begins, and make it realistic: an attendee with no authority, or with an authority set without any assessment of risk, cannot participate meaningfully. Consider the remedy the employee has actually sought, because a matter in which reinstatement is pressed raises different questions from one seeking compensation.

Keep commercial considerations separate from legal merit in your own analysis. The cost, management time and disruption of running a matter to hearing are legitimate reasons to resolve it, and they are different from a concession that the dismissal was unfair. Being clear about which reason is driving a decision keeps the negotiation coherent.

If the matter settles, document it carefully. Terms commonly considered — always subject to the circumstances and to advice — may include any payment and its treatment, the wording of a statement of service or an agreed reference, return of employer property, confidentiality, non-disparagement, the scope of any release, and the timing of each step. Two cautions. A release cannot validly extinguish every conceivable claim; some statutory entitlements and claims are not able to be contracted out of, and the effective scope of a release should be checked rather than assumed. And where a party is unrepresented, the Commission usually offers a 3-day cooling-off period following conciliation in which that party may decide to opt out of an agreed settlement, which should be understood before terms are treated as final.

Not every matter settles, and a matter that does not resolve at conciliation is not a failure. It proceeds through the Commission's ordinary processes, which may include directions for the filing of witness statements and submissions, a further conference, a separate determination of a jurisdictional objection, or a hearing, depending on the issues and the Commission member's case management of the matter.

From that point the practical obligation is straightforward: comply with each direction, and with the dates set for it. Directions are the framework the case runs on, and material filed late or not at all can limit the evidence the employer is permitted to rely on. This is also the stage at which the burden of preparation increases substantially, and at which many employers who have managed the earlier steps internally decide to obtain assistance.

Legal representation is not required in the Commission, and many employers respond and attend conciliation without it. No formal permission is required to be represented at a conciliation conducted by Commission staff, but permission must be sought where a Commission Member conducts the conciliation and the representative is a lawyer or paid agent. Early specialist advice is nonetheless prudent in some circumstances, including where jurisdiction is genuinely contested; where the employee was senior or the earnings position engages the high-income threshold; where award or enterprise agreement coverage is complex or disputed; where a redundancy is challenged as not genuine; where serious misconduct is alleged and the evidence is contested; where the same facts are also the subject of a general protections application, a discrimination complaint, a workers compensation claim or a work health and safety issue; where privilege questions affect how the matter is documented; where reputational or operational consequences are significant; and where the employer is uncertain about how to frame the response or the terms of a proposed settlement.

Employers who would like assistance with the response, the assessment or preparation for conciliation can discuss the matter with us through our workplace advisory and compliance service. Where classification or engagement status is part of the picture — for example where the dismissed worker's status as a casual employee or as an independent contractor is contested — that question should be worked through on its own terms before the response is settled.

This article is general information about process and does not take account of the circumstances of any particular matter. It is not legal advice.