The Fair Work unfair dismissal appeal system is a no-cost process so that it can afford fairness to all, irrespective of their resources – and you wouldn’t want it any other way. The baggage that comes with that is the ease with which some claims can be brought, despite the FWC’s ability to rule that a case is vexatious, without reasonable cause or has no chance of success, and to award costs against the complainant (it doesn’t happen often). In the end, the best way to deal with unfair dismissal claims is to minimise the chances you’ll get one.

There are many different motivations for an ex-employee to lodge an unfair dismissal complaint at the FWC. The most common we have come across include:

  • Because someone genuinely feels they have been unfairly dismissed. We have dealt with quite reasonable ex-employees who honestly feel they were not given a fair go. They might have been looking at only one part of the story, as we all tend to do when we get stressed, or they might have had different views about what happened, was acceptable or justified, or what they (alone) were responsible for. Sometimes this indicates a lack of self-awareness or a skewed view, but often it’s a process or communication problem.
  • Because people around them tell them they were unfairly dismissed. Some accept your decision, but the people around them, perhaps family, friends or a trade union, might not. And who knows what they are saying to each other, and how much of the story is left out for fear of embarrassment, leading to peer pressure to lodge a complaint. It helps to be seen as a fair, open, competent and supportive employer so that fairness is perceived to be a part of your character, forcing people to think twice before taking it further. (Trade unions can be really helpful here – if they can see your fairness, position and process is strong, they are likely to advise a complainant accordingly. Of course they’ll probably try to negotiate a deal anyway, but you’re certainly not obliged to do that.)
  • Because someone wants to get back at you. Revenge can be a strong motivator where people feel they have been subjected to a loss of control over their own lives, income and self-esteem. Some will prefer to move on as quickly as they can to get those things from another job, but some are likely to do whatever they think they can to get back at their employer, and what better way than getting the FWC on their side, tie up your time, cost you money and upset, trash your reputation and so on. Some people (“active-avoidance response” dominant) are more likely to react this way than others (with implications for recruitment process and choices), but, for all employees, supportive yet firm conversations that create clarity and empower employees to make their own choices about behaviours, performance and viability of ongoing employment is vital.
  • Because someone wants money. Some people, after losing their job, need money to fill the gap between jobs or between losing their job and receiving benefits. So they feel forced to take the easiest option available – a quick cash settlement. If your process is good and decisions appropriate you probably have little to worry about. It also might be possible for you to help low performers who agree that their future is not with you to transition out, such as allowing them time to attend job interviews or being a referee for them, but we understand this isn’t always practical.
  • Because someone was, or may well have been, dismissed without valid reason or due process. This happens quite a lot – the Fair Work Commission case history is evidence enough. There are a couple of things you can do. The best is to manage your team so that there are no grounds for this decision – this might feel easier said than done but for most employers it’s really not that difficult using some simple practices and keeping emotions under control – “feeling” right and justified in behaviours and decisions isn’t enough. The second best is to present your reasoning and processes as fair, rational and reasonable, even if flawed in small ways. The worst thing you can do is try to cover up, invent or improvise – if there’s a mistake or something in the process has been shortcut or overlooked then let’s be open about it and deal with it – it’s the safest, least stressful, cheapest way to go.
  • A combination of these things.

The most you can do to prevent Fair Work unfair dismissal claims is to be sincere, reasonable, open and supportive as common practice as an employer, with processes and decisions that are transparent, objective and fair. More than that, if every employee knows what is OK and what isn’t, how they are going compared to that and what they need to do more, differently, less or not at all, they’ll make choices that you and they can hold them to, sometimes including choosing to leave. You might be amazed how often, during a really open, honest and compassionate conversation, how many people are honest about their performances and options, and end up making their own choices one way or the other.