Defending an Unfair Dismissal Claim in the Fair Work Commission (FWC)

Employers can defend against an unfair dismissal claim. But, it’s worthwhile speaking to an unfair dismissal expert first. 

Employers should not shy away from defending against unfair dismissal claims or tolerating unacceptable behaviour or performance from problematic employees. By taking proactive steps and understanding your rights and obligations, you can build a strong defence. Here are key strategies to ensure you are well-prepared to defend against an unfair dismissal claim.

Understanding Unfair Dismissal Guidelines from the Fair Work Commission

When defending an unfair dismissal claim, it’s crucial to familiarise yourself with the Fair Work Commission’s guidelines on what constitutes a fair dismissal. The FWC Bench Books are an excellent source of information. This includes understanding the criteria for genuine redundancy, performance management processes, and the importance of procedural fairness. Knowing these guidelines will help you assess whether the dismissal was fair and lawful.

The Importance of Documentation in Unfair Dismissal Cases

Maintaining detailed and accurate records of all employment-related matters is essential. This includes:

  • Performance Reviews and Warnings: Document all performance evaluations, including dates and specific issues discussed.
  • Written Warnings: Ensure all warnings are given in writing and outline the expected improvements and consequences of not meeting these expectations.
  • Meeting Notes: Keep records of all meetings related to performance, behaviour, or other employment issues.

Following Fair Procedures to Avoid Unfair Dismissal Claims

Ensure that all procedures are followed according to the Fair Work Act. This includes:

  • Providing Notice: Give the required notice period or payment in lieu of notice.
  • Conducting Investigations: If the dismissal is due to misconduct, conduct a thorough and impartial investigation.
  • Offering Support: Provide the employee with an opportunity to respond to any allegations and offer support, such as a support person during discussions.

Engaging an Employment Relations Specialist for Unfair Dismissal Defence

Engage an Employment Relations specialist, such as an experienced senior HR manager who has defended many unfair dismissal claims. These specialists are often more pragmatic and cost-effective than engaging a lawyer. They offer valuable insights and practical advice based on extensive experience. Note that the Fair Work Commission (FWC) often requires permission for a lawyer to appear for the defendant. Thus, the role of an employment relations specialist becomes even more crucial in navigating the process effectively.

Considering Early Settlement to Resolve Unfair Dismissal Claims

During mediation, be prepared to settle the matter early with a compensation payment. This approach can often mitigate the risk, cost, and stress of defending the claim further. Early settlement can be a practical solution that minimises disruption and uncertainty for both parties.

Preparing for Mediation in Unfair Dismissal Cases

Mediation and conciliation are compulsory processes before a formal hearing at the Fair Work Commission. Prepare for mediation by:

  • Gathering Evidence: Collect all relevant documents and evidence to support your case.
  • Developing a Strategy: Plan your approach to mediation, including key points you wish to make and potential compromises you are willing to consider.
  • Remaining Professional: Approach mediation with a willingness to listen and engage constructively.

Reviewing Policies and Procedures to Prevent Unfair Dismissal

Regularly review and update your workplace policies and procedures to ensure they comply with current laws and best practices. Training managers and HR staff on these policies can prevent future disputes. Cross-reference relevant company policies to ensure consistency and fairness in the dismissal process.

Key Takeaways for Defending Against Unfair Dismissal Claims

  • Documentation: Keep detailed records of performance, warnings, and meetings.
  • Procedural Fairness: Follow fair procedures and provide employees with opportunities to respond.
  • Standard of Proof: Remember that the standard of proof required is the balance of probabilities, meaning it is more likely than not that the allegations are true.
  • Specialist Support: Engage an Employment Relations specialist early for expert, pragmatic advice and robust workplace investigations.
  • Early Settlement: Consider early settlement during mediation to avoid the costs and stress of prolonged defence.

By taking these steps, you can build a robust defence against unfair dismissal claims and ensure fair and lawful treatment of employees in your organisation. Don’t be afraid to address problematic behaviour or performance—be prepared and informed.