Unfair Dismissal Claims: Four Key Steps For Employers
Received 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 takes the guess work out of responding to an unfair dismissal claim and helps employers:
- understand the claim
- understand their obligations in relation to the claim
- draft an Employer Response to the claim
What is an Unfair Dismissal Claim?
A former employee (applicant) may lodge an unfair dismissal application with the FWC if they believe their dismissal was harsh, unjust or unreasonable.
At the hearing (arbitration), the applicant can seek reinstatement with back pay as the primary remedy, or compensation of up to 6 months’ pay, subject to the compensation cap, which is $95,050 for 2026-27 and changes on 1 July each year.
What Should Employers Do When They Receive a Claim?
1. Review the application carefully
Review the application carefully and check if the applicant has identified the correct employer, their correct start date and termination date, and note any discrepancies.
Is the applicant’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, refer to relevant discussions, and any documents issued to the applicant.
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 as early as possible
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 claims
- 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 on +61 420 362 579 for prompt advice and representation.