How business should react and respond to an unfair dismissal claim

26 August 2021

Unfair dismissal claims are very common. While being proactive and taking legal advice before dismissing an employee is vital, it won't always prevent a claim from being lodged.

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The Victorian Chamber’s Workplace Relations Team regularly supports businesses who have received an unfair dismissal claim. Sometimes businesses let the claims fester as they panic and try to work out how to respond. The first mistake made is not knowing that the claim is not going anywhere. Ignoring it or failing to respond will likely mean the claim will succeed, and you will be ordered to pay compensation and/or reinstate the employee. Acting quickly is vital. 

Here are five guiding principles to follow when you receive an unfair dismissal claim:  

#1: Don’t panic 

Receiving any paperwork with the Commonwealth Coat of Arms can be unnerving for any business. 

You will usually receive:  

  • A copy of the application 
  • A blank response form 
  • An information guide 
  • And often, a Notice of Listing 

Read the information promptly and make note of any key dates. Consider whether you will prepare the response yourself or if you would prefer representation.  

Remember: a formal legal process has started – ignoring it isn’t an option.  

If you are not sure of the key dates or what to do, take advice early. The Victorian Chamber’s Workplace Relations Advice Line is always on hand to talk you through these initial steps.  

#2: Get your facts straight 

Some applications will be long, very long. Try to understand what it is the employee is arguing, then do your own research. 

Put a chronology together, starting with when the employment relationship commenced and focus on any steps taken up to dismissal. Take time to speak to the relevant managers who were involved in any dismissal procedure. Collate any records including meeting notes, warnings, letters, as well as the final pay slip. 

Identify who may be relevant witnesses. Usually, we will have witnesses that go to the facts leading to dismissal and a decision maker – that may be the same person who can talk to the process taken.   

#3: Act quickly and understand the process 

You will need to take some time to make enquiries, however, you can’t take forever. You need to complete the response form within seven days of receiving it. Once you have completed it, the form needs to be sent to the Fair Work Commission and the employee using the contact details listed in the application. The contact details may be the employee or their representative. 

In some cases, a business can raise an objection. If, for example, the employee making the claim resigned or was made redundant, or hadn’t completed the minimum engagement period, you may have grounds to raise an objection.  Similarly, if the employee didn’t make the application within 21 days of the date of dismissal, you can raise an objection.  

The Fair Work Commission may list a conciliation, conference or hearing. Parties can be represented, however, if you or the employee want to be represented by a lawyer, they will need to make an application and be given permission. Permission can be rejected at the hearing itself leaving you to run the case alone. 

Members of the Victorian Chamber can be represented by our Workplace Relations Consultants who have automatic standing – no need to apply for permission. 

In a conciliation, the parties will have the opportunity to explore the case and the prospects of resolution. If a settlement isn’t achieved, the Commission will set directors to prepare the case for a hearing. The directions will then set out the steps the parties must take and will usually include filing formal written submissions and outlines of arguments, as well as witness statements and evidence.  

#4: Don’t take it personally 

This is easier said than done. 

You may have been involved in the dismissal or felt you had a close relationship with the employee. If that is the case, it’s probably best you excuse yourself and get someone impartial to manage the claim.  That could be another manager, or an external consultant. 

Sometime having an external consultant manage the claim and speak on your behalf at conciliations and hearings takes the emotion out and helps you remain focused on what you know best – the business.  

#5: Understand your internal stakeholders and decision makers 

You may be running the case or instructing the consultant, but make sure you understand who your internal stakeholders are and the extent of your authority. If you are making decisions about settlements, make sure you have the authority to do so. Take time to discuss your strategy with your stakeholders and get clear instructions on the extent or limit of your authority.  

We understand businesses would rather not deal with unfair dismissal claims. Unfortunately, they are part of doing business and it's vital you understand how and when to respond and are familiar with the process. 

How we can help  

The Victorian Chamber Workplace Relations Consultants manage a variety of disputes and claims in the Fair Work Commission on a weekly basis. We understand you are not dealing with claims regularly, that’s why we are on hand to guide you through the process and provide as much or as little support as you need.   

The Workplace Relations Advice Line offers general advice on a range of workplace issues, including:  

  • Managing unfair dismissal claims; 
  • Disciplinary processes, performance management and termination;  
  • Personal illness and injury;  
  • Parental leave and flexible working arrangements;  
  • Redundancy;  
  • Award interpretation, classification and minimum entitlements;  and 
  • Occupational Health and Safety and WorkCover.  

For assistance with any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222. 

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