HRM asks an expert to share the first steps an HR professional should take if hit with an unfair dismissal claim.
Dismissals are probably the least enjoyable part of the job for any HR professional. Getting hit with an unfair dismissal claim after can be hurtful and highly stressful.
HRM asked an expert what HR professionals need to know about responding to an unfair dismissal claim.
Receiving an unfair dismissal claim
When an employee files an unfair dismissal claim they will fill out a form called the Form F2. The Fair Work Commission will then send this form and a Notice of Listing to the company contact that the employee listed on the form (you).
The next steps for HR would be:
- Responding to the claim by filling out an Form F3, which will be sent to you with the employee’s F2 form.
- Attach necessary supporting documents, such as the letter of dismissal or written warnings to the employee.
- Send the Form F3 and attachments to the FWC and the employee who made the claim within seven days of receiving the Form F2.
“Many employers rightfully fear the unknown, and may react in a manner that can damage their prospects in the long term,” says Damien Marshall, legal practitioner director at Marshall Workplace Law.
He says you should not discuss the claim openly in the workplace or attempt to email the FWC with an emotional argument against the claim. You should follow the FWC’s processes and rules which includes filing documentation and confidentiality.
Whether you seek legal representation will be dependent on the claim itself. Marshall says legal advice may be appropriate in complex cases, for example where the claim involves complex jurisdictional matters.
Objecting to the claim
You may raise an objection to an unfair dismissal claim if you believe the FWC doesn’t have jurisdiction to hear the matter or if you believe the employee was not protected from unfair dismissal under the Fair Work Act.
A jurisdictional objection would cover things such as:
- The unfair dismissal claim was submitted more than 21 days after the dismissal.
- The employee was dismissed within the minimum employment period.
- The employee was not a regular and systematic casual employee.
An employee may not be protected from unfair dismissal laws for the following reasons:
- It was a genuine redundancy.
- The Small Business Fair Dismissal Code applies (for businesses with fewer than 15 employees) and the employer complied with it.
- The employee resigned.
- The employee was an independent contractor.
- The employee was demoted, but not significantly, and remains employed by you.
Responding to the claim
If you do not have a jurisdictional objection and the employee is protected from unfair dismissal, you are required to respond to the employee’s substantive claim of unfairness in your Form F3.
Your response should be concise and not used as a space to comprehensively argue your case, says Marshall.
“Writing an essay in your Form F3 to ‘correct the record’ backfires regularly. You might be simply giving the other side ammunition to fire back at you later in the process. HR practitioners need to focus on two themes: valid reason and procedural fairness, and not respond to irrelevant complexity that may appear in the Form F2.”
Conciliation, conferences and hearings
Conciliation is usually the next step in the process. This will be overseen by an FWC conciliator and is usually done by phone. The aim of conciliation is to avoid a time-consuming and costly FWC hearing.
“A conciliation isn’t about legal argument. It’s about resolution,” says Marshall.
“I think HR practitioners are valuable contributors in this [conciliation] process because they understand their business, but also the employee issues. With appropriate support and training, many HR practitioners take the lead in conciliation conferences and obtain great results.”
If conciliation is successful then you and the employee will likely work together to settle the matter. If it’s not, the case will go before a FWC member who will make a binding decision about the claim.
If you object to the unfair dismissal claim for jurisdictional reasons then a jurisdictional conference will likely be held before a FWC member. This will determine the validity of your objection. If the objection is upheld, the application will be dismissed.
If the FWC determines your jurisdictional objection is invalid , then an arbitrated hearing will be conducted. This is where a FWC member will determine whether the dismissal was unfair.
The FWC will sometimes opt for a determinative conference if the proceedings should be conducted in private. This sometimes happens if both parties are representing themselves. A hearing, on the other hand, is public and generally more formal than a conference.
You can find a flow chart of the process here.
Advice to keep in mind
Marshall says there are some common mistakes HR professionals make when responding to a claim.
- Every dismissal is different – the ruling on one case may not apply to your case. What may be seen as a valid reason for dismissal in one organisation cannot be applied ubiquitously.
- Conciliation may happen more than once – If the FWC member sees the potential for settlement before commencing a hearing, they may offer further conciliation opportunities.
- Be informed – “Read the information the FWC sends. There are some excellent resources on the FWC website. They even have a YouTube channel. The more you know, the less you fear and that puts you in a better position to make objective decisions.”
The information in this article is for educational purposes only. Every unfair dismissal matter is different. This article is not intended to form legal advice and should not be relied upon as such.
Need help from a workplace expert? AHRI:ASSIST can provide bespoke advice for all your HR problems.