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If you run a small business, you know that one of the biggest staffing challenges is not only hiring and retaining good people, but appropriately dismissing staff who are not the right fit. You may have dismissed an underperforming employee because you felt it was the right decision for your business and have continued managing your team. However, all of a sudden, you receive a notice from the Fair Work Commission stating that you are facing an unfair dismissal claim. This article will explain the process for employers who have received an unfair dismissal claim from a former employee, and how best to approach the next steps.

Are Small Businesses Exempt From Unfair Dismissal Claims?

There is a common misconception that small businesses are exempt from unfair dismissal proceedings. A ‘small business’ is a business with fewer than 15 employees. They must comply with the Small Business Fair Dismissal Code (the Code).

For small businesses, this means that a dismissal is not unfair if it complies with the Code.

If you dismiss an employee for serious misconduct, this is consistent with the code (and therefore not unfair). You can typically dismiss summarily in these cases, which means you can dismiss the employee without warning or notice. Serious misconduct includes:

  • theft;
  • fraud;
  • violence; and
  • serious breaches of workplace health and safety procedures.

However, if you dismiss an employee for conduct that is not “serious misconduct”, this may not be consistent with the code (and therefore unfair).

For example, if an employee has not been performing as expected, they must be formally warned of their underperformance. You must also give them the opportunity to improve their performance.

Failing to warn an employee of poor performance and dismissing them on the spot may be grounds for an unfair dismissal claim, even as a small business.

The Unfair Dismissal Claims Process

It is important to note that a notice of unfair dismissal is serious. If someone has initiated legal proceedings against you, and if you do not take action or respond, an adverse judgement could be made against you. Most Fair Work claims go through the same process. If you have received notice of unfair dismissal, this is what that process usually looks like.

Lodgement and Notice of an Unfair Dismissal Claim

An employee will lodge an unfair dismissal complaint against you, their employer, through the Fair Work Commission. The case file is allocated to a case manager. The Commission does not assess the substance of the claim at this point. The case manager will not provide legal advice to you or the employee. Their function is to organise the next steps rather than to decide the outcome of the case.

The Fair Work Commission will then notify you of an unfair dismissal claim. This is typically the first indication that someone has made a claim. At this stage, the Fair Work Commission has not investigated the claim.

Responding to the Unfair Dismissal Claim

You must respond to the notice of unfair dismissal within seven days. This includes raising any objections. You will need to prepare and file the ‘employer response’ form or the ‘objection to an application for unfair dismissal’ form to the Fair Work Commission.

If you raise any jurisdictional issues, a pre-conciliation hearing may be set up to address these. This is an informal hearing held before the actual conciliation. A jurisdictional issue essentially states that the employee had no right to make an unfair dismissal claim. Some common jurisdictional issues are that the employee:

  • lodged their unfair dismissal claim after 21 days from dismissal (although this can be extended in certain circumstances);
  • has made a claim against an entity that is not the employer; or
  • worked for the employer for less than six months, or less than 12 months if the employer has fewer than 15 employees.

Conciliation and Reaching a Settlement

In most cases, the first interaction between employer and employee will be at the conciliation. Even when you have raised jurisdictional issues, these issues are often heard at a conciliation rather than a pre-conciliation hearing. This is an informal mediation between you, the employee and a member of the Fair Work Commission to discuss the issues and see you can reach a settlement. If you have a lawyer or representative, they can attend the conciliation with you.

If the conciliation has been successful, the parties will reach a settlement. Four out of five unfair dismissal claims result in a settlement after conciliation.

Where the parties are unable to reach a settlement, the claim will progress to a hearing at the Fair Work Commission. This is a more formal process than conciliation and is essentially a court case. A commission member will hear evidence from both the employee and employer and decide whether the dismissal was unfair. If the commission finds that the dismissal was unfair, some of the orders they can make include that the employee be:

  • reinstated; or
  • compensated (this cannot be more than 26 weeks pay).

In 2017-2018, the largest bracket of payouts to employees by employers was in the range of $2,000-$3,999. Only 8% of cases ordered a monetary payout of over $15,000.

Key Takeaways

If you have received an unfair dismissal claim, you will need to respond to it within seven days. Most matters are referred to conciliation and can be settled out of court. If you cannot settle the matter at conciliation, it will progress to a hearing at the Fair Work Commission. It is important that you know how to properly respond to an unfair dismissal claim, including any potential objections you can raise. If you have any questions about unfair dismissal claims, get in touch with LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.


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