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Employment Law Essentials for Business Owners (Part 2): Defending a Fair Work Claim
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Key Insights
The first seven days can shape the dispute. Employers generally have a short window to respond once a Fair Work claim is received. That period should be used to identify the type of claim, gather the termination letter, warnings, emails, meeting notes, medical certificates, complaints and decision-maker records, and assess whether any jurisdictional or risk issues arise. Delay can narrow the employer’s options before the matter has properly started.
General protections claims are not just unfair dismissal claims with a different label. Unfair dismissal claims usually focus on whether the dismissal was harsh, unjust or unreasonable. General protections claims focus on whether adverse action was taken for a prohibited reason, such as because the employee exercised a workplace right or made a complaint. These claims can be more difficult to defend because the employer may need to prove the real reason for the decision.
The reason for dismissal needs to be evidenced, not reconstructed later. A dismissal may have been commercially justified, but that does not always make it easy to defend. If the employee recently made a complaint, took leave, raised mental health concerns or lodged a WorkCover issue, the employer’s records need to clearly show why the dismissal occurred. Decision-maker notes, consistent correspondence and a clear chronology can be critical when the claim is assessed or conciliated.
A dismissal does not always end when the employment relationship ends.
Even where an employer has carefully managed a termination process, the employee may still bring a Fair Work claim. Once that happens, the focus shifts from managing the dismissal to managing the dispute. The deadlines are short, the documents matter, and the type of claim will shape the risk from the outset.
In Part 2 of this Explain That discussion, Andrew Henshaw is joined by Jess Hill and Katherine Stewart to discuss what employers should do when a Fair Work claim is made after dismissal, including how to respond to unfair dismissal and general protections applications.
The discussion covers:
- the difference between unfair dismissal claims and general protections claims;
- why employers need to identify the type of claim early;
- the short timeframe for filing a response;
- the documents and evidence employers should gather immediately;
- how unfair dismissal matters usually proceed through conciliation;
- why general protections claims can carry higher risk;
- the reverse onus of proof in general protections claims;
- how workplace complaints, sick leave, mental health issues, discrimination and WorkCover issues can complicate a dismissal dispute;
- why decision-maker evidence and contemporaneous records matter;
- the financial and operational cost of defending Fair Work claims; and
- how employers can prepare for conciliation and assess settlement options.
Following on from Part 1, which focused on managing dismissal risk before termination, this episode looks at what happens once a claim has been filed and the employer needs to respond quickly.
A practical discussion for business owners, directors, managers, HR professionals and advisers responding to employee claims, dismissal disputes, unfair dismissal applications or general protections risks.
For advice on Fair Work claims, unfair dismissal, general protections applications, workplace complaints or employment disputes, contact Velocity Legal’s Employment team.
This podcast in no way constitutes legal advice. It is general in nature and is the opinion of the author only. You should seek legal advice tailored to your individual circumstances before acting on anything related to this podcast.
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