I Might Be Dismissed

If you think you might be dismissed, because of allegations, a show cause letter, a suspension or a performance plan, we can help you understand your rights, respond properly and, where it makes sense, negotiate an acceptable exit.

Keep Records

If you think your job is at risk, start keeping a record now. Write down the date of every meeting, who was there and what was said, as soon as possible afterwards. Keep copies of letters, emails and messages sent to you, such as warnings, performance plans and show cause letters.

Be careful about what you take. Keep documents you are entitled to have, but do not forward confidential business documents to your personal email or copy files you are not permitted to access. That can itself be treated as misconduct and can damage your case. If you are unsure, ask us first.

After a dismissal you will usually be locked out of work systems, so it helps to gather what you are entitled to keep while you still have access.

Put Forward Your Case

Before an employer dismisses someone for misconduct, performance or incapacity, it should tell them the reason clearly and give them a real opportunity to respond while the decision is still open. If you are covered by the unfair dismissal laws, the Fair Work Commission takes into account whether that happened (s 387 of the Fair Work Act 2009 (Cth)).

Use that opportunity well. Ask for the allegations and the material relied on if you have not been given them, ask for reasonable time, and respond to each point directly, in writing. Check your employer’s policies to see what process it has committed to. Our guide to show cause letters sets out how to respond step by step, and our page on allegations covers investigations.

If you have been told to stay away from work while your employer investigates, see suspension and stand down. If you are on a performance improvement plan, see performance management.

Be Careful When Signing Documents

When an employee is on the verge of being dismissed, an employer may offer a deed of settlement or separation agreement. Its effect is usually that you give up the right to make any claim against the employer.

We often see deeds that offer little more than the employee’s minimum entitlements, which they were owed anyway. In that case you would be giving up your claims and getting nothing extra in return.

Get legal advice before signing any settlement agreement. You are entitled to take it away and read it, and a reasonable employer will give you time to do so.

Be Prepared

If you are dismissed, you generally have 21 days from the day the dismissal takes effect to lodge a claim with the Fair Work Commission (28 days for an unfair dismissal claim in the WA state system; see our WA state system guide). You can talk to us before a dismissal happens, to find out where you stand. Circumstances that can support a claim include:

You did not do what you were accused of.

What you did was not serious enough to justify dismissal.

You were doing your job adequately, or were never properly warned and given a chance to improve.

The process started after you made a complaint or inquiry about your employment, formal or informal.

The process started after you exercised a right, such as taking leave, asking for flexible work, complaining to an outside body, or declining after-hours contact under the right to disconnect.

Your employer had breached your award or enterprise agreement.

You were told you were being made redundant but your job is still needed, or there was another job you could have done.

There are many other possibilities, so it is worth getting advice early.

What Is Required for a Dismissal?

A dismissal takes effect when it is communicated to you, usually in person. The Fair Work Act requires your employer to give you written notice of the day your employment ends, and a minimum period of notice or pay in lieu (s 117), unless you are dismissed for serious misconduct. It is normal to receive a termination letter.

If you are dismissed verbally or by text, the dismissal still counts, and the 21 days start running. Write down what was said and when.

Be Careful If Resigning

Sometimes an employee feels hopeless about their situation and simply resigns. If you resign, you limit the claims you can make. The law treats a resignation as a dismissal only if you were forced to resign by your employer’s conduct, so that you had no real choice (s 386(1)(b)). That is judged objectively and is often difficult to prove.

If you are thinking of resigning because of how you are being treated, get advice first. If you are thinking about making a dismissal claim, it is usually better not to resign and to let the employer make its own decision. See our page on resigning or being forced to resign.

If you have already resigned, you may still have other claims, such as for underpayments, breaches of an award or enterprise agreement, or general protections claims about action taken before you left. As part of settling a dismissal claim, we can often negotiate for the dismissal to be recorded as a resignation.

Support Person

Employers usually hold meetings to put allegations or concerns to an employee before deciding to dismiss. You can ask to have a support person at any meeting that could lead to your dismissal. Your employer does not have to offer one, but if you ask and your employer unreasonably refuses, that counts against it in an unfair dismissal claim (s 387(d)).

A support person:

can make it easier to deal with a stressful meeting;

can be a witness to what was said;

can take notes, which can later be used as evidence; and

is not an advocate and does not usually speak on your behalf.

Choose someone who can attend at the time set, because your employer does not have to delay a meeting indefinitely.

A Negotiated Exit

Sometimes the best outcome is a negotiated exit. MKI Legal has a lot of experience negotiating for employees to reach a mutual resolution. That can include compensation above your minimum entitlements, a resignation instead of a dismissal, a statement of service or agreed reference, and confidentiality and non-disparagement terms.

If a negotiation succeeds, it is recorded in a settlement agreement or deed, which sets out each side’s obligations and usually prevents either side from bringing legal proceedings about the employment.

If you have questions about your situation, give us a call for a free, no-obligation discussion.