Employer defence to unfair dismissal workflow
Most unfair dismissal applications resolve at conciliation. The employer's preparation in the first three weeks — jurisdictional objections, the valid reason evidence, and the procedural fairness record — sets the settlement position and the arbitration outcome if the matter proceeds.
This is an 8-step workflow for an employer defending an unfair dismissal application under Part 3-2 of the Fair Work Act 2009 (Cth). It runs from jurisdictional objections through s 387 criteria, conciliation, and arbitration.
Before you start
- Copy of Form F2 application and any attached material
- Employment contract, position description, and relevant policies
- Full disciplinary record, warnings, and performance documents
- Evidence of procedural fairness (show cause, response, decision)
The workflow
File Form F3 and identify jurisdictional objections
File the Form F3 employer response within 7 days. Identify any jurisdictional objections — minimum employment period, high income threshold, genuine redundancy, small business fair dismissal code.
Gather valid reason evidence
Gather evidence of the valid reason under s 387(a) — conduct, capacity, or operational requirements. Ensure documents are contemporaneous, not reconstructed.
Review procedural fairness
Review procedural fairness: notification of reason, opportunity to respond, allowing a support person, and warning for unsatisfactory performance prior to dismissal. Fix any deficiency by offering a settlement range.
Consider genuine redundancy
If the defence is genuine redundancy (s 389), confirm the role is no longer required, consultation under the applicable award was complied with, and redeployment in the business and associated entities was considered.
Consider the Small Business Fair Dismissal Code
Where the employer has fewer than 15 employees (head-count across associated entities), assess compliance with the Small Business Fair Dismissal Code. Compliance is a complete defence.
Prepare for conciliation
Prepare a settlement range (weeks of pay, reference, release), including consideration of without admissions wording. Attend FWC conciliation with authority to settle.
Prepare witness statements and submissions
If not settled, prepare witness statements from the decision-maker and any investigator, plus written submissions addressing each s 387 factor.
Attend arbitration and manage outcome
Attend the FWC arbitration hearing. On outcome, advise on any order — reinstatement, compensation, or dismissal of the application — and implement.
What you will have at the end
Either a settled unfair dismissal application with signed deed of release, or a FWC decision dismissing the application or limiting any compensation order.
Common issues
- Valid reason evidence reconstructed after dismissal
- Support person denied without a legitimate reason
- Genuine redundancy defence undermined by lack of consultation
- Small business headcount miscounted across associated entities
- Settlement deed omits tax, return of property, and non-disparagement clauses
Run this workflow on a real matter
Quillio drafts the Form F3, jurisdictional outline, conciliation position paper, and witness statements. See /practice-areas/employment-lawyers or start a free trial at /free-trial.
General guide only — not legal advice. Unfair dismissal outcomes turn on contemporaneous evidence; document procedural fairness before any dismissal.
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