Defending an Unfair Dismissal Claim – HR need to consider 3 main issues

Defending an Unfair Dismissal Claim? Here are 3 things HR need to know

An unfair dismissal claim has come across your desk. It has been given to the HR team to handle and hopefully the HR team have been involved with the situation prior to dismissal. 

What do you do now?

Here are 3 quick considerations for HR:

1.    What are the weaknesses in your defence?

Consider the elements – harsh, unjust or unreasonable

–        Was there a valid reason for dismissal – if so what evidence can you provide to back this up?

–        Was the person notified of the reason –

o  if it was performance based – was the employee given an opportunity to improve? Did they know the standard required?

o  If it was misconduct – was a show cause process undertaken?

–        Did the employee ask for a support person?

–        Was the outcome proportionate to the conduct or performance issue?

–        Were the economic and personal consequences of the employee considered?

Answers to these questions will impact your strategy.

2.    Consider your counter measures

Initially when reading an application you will usually see a variety of applications. If they are represented by a law firm chances are it will be more well thought out and the elements of harsh, unjust or unreasonable are set out. That is because the onus of proof lies with an employee in an unfair dismissal claim.

If the applicant is self represented or is represented by a more generic advocate the application may be incoherent or basic. It might not even be clear what they are relying upon to file the dismissal claim.

If you do have weaknesses in your defence you need to consider how you will counter this you may want to consider a number of strategies:

–        Were there previous misconduct or performance issues that can be relied upon?

–        What witnesses will you need to rely upon – are you able to obtain a statement?

–        Does the employee owe the employer unpaid monies?

–        What are your arguments against what is being said by the employee?

3.    What are the commercial considerations?

Even if the employee is seeking reinstatement you need to consider the commercial implications.

Firstly, there is a good chance the matter may settle at the conciliation conference stage (or even before). What is the company willing to pay?

Secondly, do you need external help? If so, what is the business case for doing so. Claims that are a little complex or messy will usually need some advice by a law firm.  If you are looking to file jurisdictional objection strongly consider what a specialist employment law firm can provide for you. 

If this article resonated with you feel free to give us a call  +61 (07) 3876 5111 to arrange a time to speak with one of our lawyers for an obligation free consultation.

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Written By

Jonathan Mamaril 


NB Lawyers – Lawyers for Employers 

[email protected]  

+61 (07) 3876 5111

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About the Author

Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law at NB Lawyers – Lawyers for Employers who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.