Part 1: How to respond to an unfair dismissal claim

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Table of Contents

• Dispute Resolution Options
• What to do when you receive a claim
• Conclusion

Have you had a difficult employee? Is one employee performing badly? Have you recently terminated an employee’s employment for misconduct?

When an employee is terminated, and believes that he/she has been terminated unfairly, the employee may seek assistance from Fair Work Australia by lodging an unfair dismissal claim.

When you receive a notice of claim from Fair Work Australia, it will typically include:

• a notice explaining the lodgement of a claim against the employer;
• a copy version of the claim;
• extra materials fleshing out the procedure; and
• sometimes a notice for conciliation over the phone.

Dispute Resolution Options

There are 3 ways for resolving a dispute of this nature between an employer and an ex-employee. The first method is to resolve the matter between the parties without taking any further legal action.

If you believe that you have awarded the employee procedural fairness by providing appropriate warnings and giving the employee an opportunity to improve his/her performance prior to the termination, we recommend that you attempt to settle this without going through Fair Work Australia. This can be done by you taking steps to contact your employee and arranging a meeting to discuss the issues in good faith.

Sometimes the employee will agree to resign and perhaps even sign a Deed of Release. This is often in exchange for a lump sum payment by the employer.

Another means of resolving the matter is through conciliation, which is a process between the concerned parties and a conciliator from the Fair Work Commission. This process involves all parties participating in an interest-based negotiation, typically over the phone, with a view to resolving the matter.

Finally, if the conciliation process does not resolve the matter or the employee chooses not to withdraw the unfair dismissal application, it may proceed to a conference or a hearing. The Commission will then send a notice to each party informing them of either a conference date or a hearing date to finalise the matter. A conference is conducted privately, whereas hearings are public.

What to do when you receive a claim

Read the claim – The first thing you should do is to read the claim carefully.

To lodge an unfair dismissal claim, the employee is generally only required to complete an online form and make payment of a nominal fee. Fair Work Australia does not put the claim through any merits testing or screening process. It is not uncommon for employees to omit certain salient details. This means it is up to you to identify any holes in the story.

After this, before you take any further steps, we recommend you consult an employment lawyer who can review the matter, provide you with advice as to your next steps, and discuss various options with you.

Conclusion

Stay tuned for Part 2 on responding to unfair dismissal claims, where we will look at the legal considerations of assessing a claim, consider which employees are in fact entitled to make a claim and what to do about late lodgement of claims.

For legal advice at fixed-fees, contact LegalVision 1300 544 755.