Defend a Claim Against The Business

If an employee has made a claim against your business, we can defend the business and negotiate on its behalf. The first step in most claims is a conciliation or conference, and many claims settle there.

Defending The Business From Claims

Employment claims can be a significant challenge for a business. We have extensive experience in employment litigation and can help defend your business against a range of claims. Here are the claims we deal with most, how they run, and how we can help.

When a claim arrives, act quickly. The Fair Work Commission usually asks for the employer’s response within 7 days. Tell your insurer if you have employment practices cover, and do not contact the former employee about the claim without advice.

Unfair Dismissal Claims

An employee who believes they were unfairly dismissed can apply to the Fair Work Commission within 21 days. If the claim succeeds, the Commission’s primary remedy is reinstatement. Compensation is capped at the lesser of 26 weeks’ pay and half the high income threshold: $95,050 for dismissals on or after 1 July 2026 ($91,550 in 2025-26). The figure changes every 1 July.

Jurisdictional objections. Before the merits, the Commission must be satisfied the application was on time, the employee was protected from unfair dismissal (minimum employment period of 6 months, or 12 months for a small business; award or agreement coverage or earnings below the high income threshold of $190,100 for dismissals from 1 July 2026), and that the dismissal was not a genuine redundancy and was consistent with the Small Business Fair Dismissal Code where it applies. If any of these is missing, we can object on the business’s behalf.

The response. We prepare the employer response (Form F3), setting out the business’s reasons and why the dismissal was not unfair, and help you gather the evidence: investigation records, warnings, the show cause letter and response, and notes of meetings.

Conciliation. Most unfair dismissal claims go to a voluntary conciliation with a Commission conciliator, usually online and about five weeks after the application. The Commission reports that about 3 in 4 cases resolve at that stage. We can represent your business and negotiate a sensible settlement.

Settlement. If the claim settles, we prepare a deed of release so the employee cannot bring further claims about the employment. Some entitlements cannot be released, such as unpaid superannuation guarantee contributions and some statutory workers’ compensation rights.

Hearing. If the claim does not settle, it goes to a Commission Member, who hears the evidence at a conference or hearing and decides. We can represent the business throughout.

Unfair Dismissal Claims
General Protections Claims

A general protections claim alleges that the employee was dismissed, or otherwise treated adversely, for a prohibited reason. There is no minimum employment period, no income threshold and no cap on compensation, which can include hurt and distress, and penalties can be ordered against the business and against individuals involved (s 550). Prohibited reasons include:

Making a complaint or inquiry about their employment.

Exercising a workplace right, such as taking leave, requesting flexible work, or reasonably refusing after-hours contact under the right to disconnect.

Being, or not being, a union member, or taking part in lawful industrial activity.

A protected attribute, such as race, sex, age, disability, pregnancy, family or carer’s responsibilities, or subjection to family and domestic violence.

Being temporarily absent from work because of illness or injury.

Taking part in workplace processes, such as making a bullying complaint or complaining to the Fair Work Ombudsman.

The central question is why the business acted. Under s 361 of the Fair Work Act, the law presumes the business acted for the prohibited reason alleged unless the business proves otherwise. In practice, the person who actually made the decision must give credible evidence of their real reasons, such as performance, misconduct or a genuine redundancy. Good contemporaneous records of the decision-maker’s reasons are the best defence.

A dismissal claim starts in the Fair Work Commission with a conference. If it does not resolve, the Commission issues a certificate, and the employee has 14 days to start proceedings in the Federal Court or the Federal Circuit and Family Court of Australia, unless both sides agree to arbitration in the Commission. In court there is usually a further mediation before trial. Unlike unfair dismissal, for applications made from 7 July 2026 an objection that the employee resigned or was not dismissed does not stop the Commission conference: the Commission deals with the dispute on the employee’s allegation (s 368(1A); s 776(1A) for unlawful termination), and the point is argued in court.

We prepare the response, represent the business at the conference and in court, and prepare a deed if the matter settles. Costs in these courts are limited (s 570), so each side usually bears its own legal costs.

Underpayment Claims

Employees sometimes claim they are owed wages or entitlements under an award, enterprise agreement or the National Employment Standards. Claims can generally go back 6 years. We review the award coverage, classification and pay records, work out what is actually owed (and any valid set-off), and negotiate or defend the claim. Since 1 January 2025, intentional underpayment can also be a criminal offence, so get advice early. See our underpayments page.

Bullying and Sexual Harassment Claims

A worker who says they have been bullied, or sexually harassed, at work can apply to the Fair Work Commission for an order to stop it. Sexual harassment disputes can also lead to compensation orders. Employers also have a positive duty under the Sex Discrimination Act 1984 (Cth) to take reasonable and proportionate measures to eliminate sexual harassment. We can respond to the application, advise on any investigation, and represent the business.

Penalty Claims

An employee, a union or the Fair Work Ombudsman may allege that the business breached a modern award, an enterprise agreement or the Fair Work Act, and seek a civil penalty. Penalties are designed to punish and deter. Managers, directors, HR staff, payroll providers and advisers who were involved in a contravention can also be personally liable as accessories (s 550).

Maximum penalties rose significantly from 27 February 2024, including a five-fold increase for some contraventions by businesses with 15 or more employees, and a lower threshold for a “serious contravention” (knowing or reckless, rather than knowing and systematic). From 1 January 2025, the maximum penalty for some underpayment contraventions by larger businesses can be three times the amount of the underpayment.

The amount of any penalty is decided case by case, taking into account factors such as:

The seriousness of the contravention

Whether it was deliberate or accidental

Whether it has been fixed, and employees back-paid

Any past contraventions

Steps taken to prevent it happening again

The size of the business

The level of HR expertise the business had

Whether the affected employees were particularly vulnerable, such as workers with a disability, young or older workers, visa holders, or those with limited English

Fair Work Ombudsman Prosecutions
Fair Work Ombudsman Prosecutions

We have acted on matters where the Fair Work Ombudsman sought penalties against a business. It is best to get legal help well before the Ombudsman decides to litigate. If it cannot be avoided, we assess the Ombudsman’s case and the risks, and work to get the best outcome possible. See our page on Fair Work Ombudsman investigations.

Conclusion

At MKI Legal, we have extensive experience in employment litigation and can help your business defend a wide range of claims: preparing the response, gathering evidence, and representing the business at conciliation, hearing or trial. If your business is in the WA state system (for example a sole trader or partnership), claims run in the WA Industrial Relations Commission under different rules; see our WA state system guide. Contact us today to discuss your matter.

Case studies

How the law played out in real cases

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Published decisions of courts and tribunals, summarised in plain English from the published decision. Every case turns on its own facts.