The Fair Work website explains this extremely well, so here’s what they have to say:

  • “Employers find out about an unfair dismissal claim when they receive a copy of the dismissed employee’s application from the Fair Work Commission. This is often the first time the employer is aware that the employee has made a claim against them.
  • An employer’s initial response can range from confusion to bewilderment, because you don’t know how this started or what you should do next.
  • You cannot afford to ignore this matter – it is the start of a formal legal process and won’t just ‘go away’. Even if you believe you have done nothing wrong you still have to be involved in the process and present your arguments. If you do not participate a decision may still be made against you.
  • The Commission does not investigate unfair dismissal claims or start legal action against employers. It can only deal with claims and evidence that are brought before it.
  • You have received an Unfair dismissal application form because a former employee has applied to the Fair Work Commission. The employee is alleging they were unfairly dismissed by you or your company, and is asking the Commission to deal with their case.”

The documents you receive from the Fair Work Commission are self-explanatory, but they can still feel like a mine-field. If you’re confident, especially in applying for the case to be dismissed due to being outside of the scope of the Fair Work unfair dismissal process (a jurisdictional objection), go for it. Just do it without delay and be careful that the information you provide can be shown to be accurate if tested in court – bluffing, guessing and bending the truth can backfire and reflect poorly on character and credibility.

Our Thoughts

Our advice, of course, is a little bit different from that if the FWC in that we’d say to contact us ASAP. The earlier we can get started the better, and we’ll need to get information from you so that we put together the strongest possible case for the conciliation call. Ideally, we’d like the conciliator to get a strong, consistent message about the strength of your position so that, even though he or she is not supposed to attempt to influence the complainant in that call, any influence that may be felt (and there’s usually quite a bit) by the complainant is that they are wasting their time if their case is a frivolous money-grab.

Settling

Commonly there is an attempt by the conciliator to facilitate a cash settlement, and employers can feel pressured to accept it because they think the conciliator is authoritative and they’d also really like the problem to go away. It’s a terrible feeling and position to be in if you’ve done nothing wrong, and while getting the problem resolved like this can be the best thing to do to make the problem go away despite the injustice and cost, it also sets or supports a precedent in ex-employees feeling it’s an easy way to get money, making repetitions more likely.

If your position, process and decision are strong, and despite you not having have the time, energy or stress to deal with it yourself, we recommend not settling. Instead, get us or a legal firm (depending on your budget) to act for you. Typically, it’s cheaper to get us involved than to settle unnecessarily, and your employees will know that claims will be taken seriously, including how you vigorously defend frivolous ones.

Better still, if you have a sense that there are some rumblings or possible upcoming problems, we should talk about what you can do to avoid claims being made altogether. Fortunately, they are also things that help to make your business productive, safe and happy.