Welcome to Part 2 on responding to claims of unfair dismissal. We will continue looking at the steps you should take when responding to a claim.

What to do when you receive a claim

Just to recap, the first step covered in part 1 was to read the entire claim and check that it does not omit certain important details. 

The next step was to contact a lawyer. Your lawyer will have various questions for you so that your lawyer can assess your case and advise accordingly.

Check the employee’s records – Pull up the employee’s files and any records relevant to the matter. Thoroughly look over the documents in the file and check for the following:

  • Did the employee receive the required notice period?
  • Were the reasons for termination explained to the employee?
  • Were any performance reviews conducted during the course of the employment?
  • Were any warnings, based on performance or otherwise, given to the employee? Was a final warning issued?
  • Did the employee have the benefit of a ‘show cause’ meeting to answer any concerns regarding performance, conduct, etc.? Was this meeting recorded?

After looking over the file, you’ll have a better idea of whether the person was terminated in accordance with the many procedural requirements.

If there are any minutes of meetings or warnings in writing, this should be provided to your lawyer.

Prepare a detailed response

You will have to respond to the employee’s unfair dismissal claim. This is a crucial step. Sometimes, if an employer refuses to respond, responds inappropriately, or fails to seriously consider the claim, the Commission may make orders for costs against the employer. Accordingly, it is important that you respond as soon as practicable and do not dismiss the claim outright, regardless of whether or not the claims are substantiated.

If you have already engaged a lawyer upon receiving the claim, then great – your lawyer can now assist you in preparing your response.

If you have not yet spoken to a lawyer – you should do this now. Your lawyer can help you prepare a structured and detailed letter of response.

The response letter needs to be as detailed as possible, including dates, times, and anything that is relevant to the claim. If there are any minutes, notices or relevant correspondence in writing that is relevant, these need to be attached to the response letter.

Who can make a claim of unfair dismissal?

Not every employee is entitled to make a claim of unfair dismissal. For example, casual employees are prevented from the right to lodge unfair dismissal claims, and instead lodge ‘jurisdictional objections’. The basis for this exclusion is the temporary nature of casual employment.

Any lodgement of a claim of unfair dismissal must be lodged no longer than 21 days after the dismissal. This is a fairly hard and fast rule and the Fair Work Commission are not typically willing to accept tardiness as a reason for late lodgement.

What to do when a claim is lodged late

If you receive an unfair dismissal claim that is lodged more than 21 days after the termination of the employee making the claim, you can lodge a jurisdictional objection. These objections are usually conducted face to face with the assistance of a Commissioner.

Keep in mind that even if you are successful at the jurisdictional hearing, this may not be the end of the unfair dismissal claim. There is a possibility that the unfair dismissal may progress to conciliation.

Conclusion

If you are being faced with claims of unfair dismissal and you are at odds with how best to respond, you would be wise to seek legal advice. Speak with an experienced employment lawyer about your options moving forward. The last thing you should do is nothing, as this could result in an order for costs being made against you. Alternatively, if you are an employee seeking advice regarding what you believe to be an unfair dismissal, contact LegalVision on 1300 544 755 and get a quote for assistance today!

Priscilla Ng

Next Steps

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