Responding to and reducing unfair dismissal claims for employers

A claim needs a considered response, not a defensive reaction

When a claim arrives, identify the response date in the Commission correspondence and preserve the original records. Avoid assuming that a short service period, probation clause or signed contract necessarily disposes of the matter. Eligibility, the dismissal reason and the way the decision was made are separate questions.

An organised response explains what happened, who made the decision and the material considered at the time. Reconstructing a stronger reason after the event can create inconsistencies rather than solve them.

How MAKIN Advisory can assist employers

• Review the application, response requirements and potential eligibility issues.

• Assess the contemporaneous evidence and prepare a coherent factual account.

• Assist with responses, conciliation preparation and settlement discussions.

• Advise before performance, conduct or redundancy decisions are finalised.

• Review employment documents and practical processes to reduce avoidable risk.

Prepare the records that explain the decision

Gather the contract, relevant policies, warnings, meeting notes, employee responses and termination correspondence. Identify the actual decision-maker and preserve messages and records in their original form. Do not backdate notes or alter a document to make the process appear stronger.

In your enquiry, provide the claim type, response deadline and a short summary. We can then discuss the documents needed, the proposed work and its cost. Keep sensitive employee material out of the initial website message.

Request advice on an employer response

Reducing risk before a dismissal

A useful process starts before the termination letter. Be clear about the concern, distinguish allegations from established facts and consider the employee’s response genuinely. The appropriate steps differ between performance concerns, serious conduct and organisational change.

Also examine the reason behind the decision. A process that appears orderly may still raise a different legal issue if the decision is connected to a protected workplace right or another prohibited reason. A checklist cannot replace attention to the actual circumstances.

Employer unfair dismissal FAQs

Can a contract prevent an employee making a claim?

A contract should not be treated as a way to remove statutory protections. The applicable law and facts determine the available rights. Well-prepared documents help set expectations, but they are not immunity from a claim.

Can we object because the employee is not eligible?

Potential objections may exist, but they need to be based on the relevant criteria and evidence. Assess service, coverage, timing and the actual circumstances rather than making assumptions from job title or employment status.

Do small businesses have different rules?

Some aspects of unfair dismissal law differ for small business employers, including minimum service and the Small Business Fair Dismissal Code. Establish whether the business meets the relevant definition and whether the requirements were met; size alone does not decide the outcome.

Do we always need three warnings?

No fixed three-warning rule governs every dismissal. Appropriate steps depend on the reason and circumstances. Performance concerns, alleged misconduct and redundancy require different analysis, including whether the employee had a meaningful opportunity to respond where relevant.

Should we settle even if we disagree with the claim?

Settlement is a commercial and legal decision, not automatically an admission. Consider evidence, prospects, management time, costs and the terms needed for a workable resolution. A proposed release and other obligations should be understood before agreement.

What affects the cost of responding?

The scope may range from reviewing a draft response to assisting through conciliation or later stages. Complexity, urgency and document volume matter. Provide the correspondence and deadline so we can discuss the work required without assuming a one-size-fits-all package.

Discuss the response before the deadline

We work with employers on the Gold Coast, in Brisbane and remotely, with meetings by appointment. Enquire about an employment matter or email sam@makinadvisory.com.au.

Related: General protections claims and redundancy considerations. Official resource: Commission guidance on objections.