What an Employer Should Do When They Receive an Unfair Dismissal Claim
Receiving an unfair dismissal application from a former employee can be stressful and time-consuming. However, understanding the Fair Work Commission (FWC) process and responding promptly and strategically is important.
Here are some simple steps an employer can take to help lighten the load when they receive an email from the FWC attaching an unfair dismissal application:
1. Read the application carefully
Consider if the former employee has identified the correct employer, their correct start date and termination date, and note any discrepancies.
Is the former employee’s version of events a fair description of what happened leading up to, and on the day of, their dismissal? If not, prepare a timeline of events, citing relevant discussions, and any documents issued to the former employee.
2. Mark the calendar
The F3 Employer Response must be filed within 7 calendar days of receiving the application from the FWC. Mark your calendar to ensure you know when the F3 Employer Response is due.
3. Identify relevant documents and dates
Before you start drafting the F3 Employer Response, identify and gather documents that you want to rely on, such as:
- warnings
- investigation findings
- policies
- emails or correspondence
- performance documents or performance improvement plans
- timeline of events.
4. Consider getting legal advice
The F3 Employer Response forms the foundation of your defence to the unfair dismissal application. Before you draft it, consider obtaining legal advice from a specialist employment lawyer.
It is beneficial to get legal advice from a specialist employment lawyer before you draft the F3 Employer Response because the specialist employment lawyer can quickly assess whether the former employee:
- lodged within the 21-day time limit that applies to unfair dismissal applications
- completed the minimum employment period
- is covered by a modern award
- earned above the high-income threshold
- was “dismissed” within the meaning of the Fair Work Act 2009 (Cth) (FW Act)
The specialist employment lawyer can also:
- identify any jurisdictional objections that may be made to the application, and what making a jurisdictional objection will entail
- help you narrow the issues that need to be detailed in the F3 Employer Response
- help you understand the strengths and weaknesses of your defence.
5. Ensure the F3 Employer Response is accurate
The F3 Employer Response must address what happened, and address the matters that the FWC will ultimately consider, such as:
- Were any concerns raised with the former employee about their performance or conduct, and were they given a chance to respond
- Was the former employee issued with any warnings
- Was the former employee given a chance to improve their performance
- The reason(s) for the former employee’s dismissal, and whether they were dismissed for a valid reason within the meaning of the FW Act
- Whether the former employee was dismissed because their position was redundant to the needs of the business and did any consultation obligations and redeployment obligations apply
- Was the Small Business Fair Dismissal Code followed (in the case of employers with less than 15 employees).
