Avoiding Unfair Dismissal Claims: Why One Sloppy Meeting Can Cost You Big

You might have a rock-solid reason to discipline or dismiss an employee, but if you get the process wrong, it can still end up costing your business thousands.

At the Fair Work Commission, employers often lose unfair dismissal cases not because they lacked a valid reason, but because they didn’t follow proper procedure. A rushed meeting, poor documentation, or skipping a key step like allowing a support person can all make an otherwise fair dismissal unfair in the eyes of the law, and fall foul of s387 of the Fair Work Act.

Before You Sit Down: Do Your Homework

A disciplinary meeting should never be your first step. Start by investigating the issue properly, gather facts, talk to witnesses, and review any relevant records.

Then, prepare your paperwork. Send the employee a written notice outlining:

• The specific concerns or allegations
• Any evidence you have
• The date, time and place of the meeting
• Their right to bring a support person
• The possible outcomes (from a warning to termination)

Giving at least 24-48 hours’ notice helps show fairness and allows the employee to prepare.

Running the Meeting the Right Way

When the meeting starts, be clear and professional. Explain why you’re there and outline the concerns. Present your evidence calmly and give the employee a genuine chance to respond, this isn’t a box-ticking exercise.

Listen carefully. Take notes. Ask clarifying questions. And most importantly, don’t make your decision on the spot unless it’s an obvious case of serious misconduct (like theft, fraud, sexual harassment or violence). Taking time to consider the employee’s response shows fairness and protects your business if things go further.

After the Meeting

Once you’ve reviewed everything, make a decision based on facts, not frustration. Document your reasoning and communicate the outcome in writing.

If you issue a warning or performance plan, follow up on it. Consistency is key, it proves you’ve acted reasonably and gives employees a fair chance to improve.

Common Pitfalls to Avoid

• Skipping your own disciplinary policy
• Refusing a support person
• Rushing investigations
• Treating similar cases differently
• Poor or missing documentation

Even small missteps in process can turn a justified dismissal into a costly dispute.

Small Business Employers

If you employ fewer than 15 people, a dismissal of an employee in accordance with the Small Business Fair Dismissal Code, is not treated as an unfair dismissal. However, you still need to act fairly, and document what you do.

The Bottom Line

Good process is good business. It protects your reputation, your workplace culture, and your bottom line. Most unfair dismissal claims succeed because the process, not the reason was flawed.

If you’re ever unsure, slow down and get advice before you act. Rushing rarely helps and can create much bigger problems later.

Need Expert Guidance?
Call your ER Team at MTA NSW - we’re here to help you get it right.