Responding to an Unfair Dismissal Claim
Receiving an unfair dismissal claim can be stressful for any employer. The way you respond in the early stages of a claim can significantly affect the outcome.
HintonFlynn Legal helps employers understand and respond to unfair dismissal applications in the Fair Work Commission (FWC). HintonFlynn Legal provides practical advice, drafts the response, and represents employers throughout the process.
What is an Unfair Dismissal Claim?
An employee may lodge an unfair dismissal application with the FWC if they believe their dismissal was harsh, unjust or unreasonable.
What Should Employers Do When They Receive a Claim?
1. Review 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 employment 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 as early as possible
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:
- can access the FWC unfair dismissal jurisdiction
- 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).
How HintonFlynn Legal Can Help
HintonFlynn Legal regularly assists employers with:
- Responding to unfair dismissal applications
- Assessing legal and commercial risks arising from the claim
- Settling an unfair dismissal claim where it makes commercial sense.
HintonFlynn Legal provides strategic advice focused on achieving practical and cost-effective outcomes for employers.
Speak with an Employment Lawyer
Want advice specific to your circumstances? If your business has received an unfair dismissal claim, contact Pamela Flynn of HintonFlynn Legal for prompt advice and representation.