Inside the System: What Employers Hope You Don’t Understand About Unfair Dismissal Law
1. Your Rights Don’t Kick in When You’re Fired. They Begin When the Targeting Starts.
Many employees believe the unfair dismissal process begins with a termination letter. In reality, it often starts weeks—or months—earlier.
It starts with:
The first vague “concern” about your performance
The unexplained exclusion from meetings
The sudden shift in tone from your manager
Or the casual suggestion that “maybe this role isn’t working out”
What follows is a process designed to look procedural but feel personal. The goal? To frustrate you. To isolate you. To build a file that ends with your exit.
Once you’re out the door, the employer can wave around performance records, policy breaches, or conduct allegations—none of which were properly put to you, and none of which were genuinely investigated.
The Commission will look at what happened in the lead-up to the dismissal. So should you.
2. Procedural Fairness Is More Than a Buzzword. It’s a Legal Lever.
Employers love to claim they followed “due process.” But saying it and proving it are two very different things. Procedural fairness means:
You’re told the real reason for your dismissal in clear terms
You’re given a proper chance to respond
You’re allowed a support person
Your explanation is genuinely considered
Too often, employers go through the motions but don’t apply these rights meaningfully. They hand you allegations and a pre-written termination letter in the same meeting. They “invite” you to respond but dismiss you the next day. They take no steps to verify what actually happened.
That’s not fairness. That’s formality used as a disguise.
The Fair Work Commission knows the difference. So should you.
3. Being Put on a Performance Plan Might Not Be About Performance
Let’s be honest—some performance management plans are nothing more than structured exits.
If you're suddenly on a plan after years of good reviews, or if your targets are impossible, or if support is removed the moment you ask for clarification, the writing is on the wall.
Here’s a test: Are they helping you succeed or setting you up to fail? If it’s the latter, it may be grounds to argue the dismissal was not only harsh, but orchestrated.
And if you resign under that pressure? You may still have a case. Forced resignations are often challengeable as constructive dismissal—especially if no reasonable person would stay in the environment they created.
4. Small Business? Big Excuses. But the Code Isn't Bulletproof.
Small businesses love to wave the Small Business Fair Dismissal Code as if it gives them immunity. It doesn’t.
The Code only protects them if:
There was a clear reason for dismissal
The employee was warned
The behaviour was investigated
The employee had an opportunity to respond
Tick-box exercises won’t save them if the dismissal was rushed, retaliatory, or unsupported. The Commission has rejected the Code countless times when employers misused it as a shortcut.
5. Your Mental Health Matters—But It Has to Be Raised Clearly
If your workplace caused serious stress, anxiety, or other mental health issues, don’t stay silent. But don’t rely on sympathy either. Raise it. Document it. Ask for adjustments. Get medical support. Because if your employer later dismisses you for conduct or performance, the Commission will want to know: was the employer aware? Did they act reasonably?
Silence helps employers argue they never knew. Clarity puts the pressure on them to respond lawfully.
6. Your Employer Has a Strategy. You Need One Too.
Here’s the hard truth: many dismissals are rehearsed. HR and management meet in advance. Scripts are written. Support people are selected. And everything is recorded.
You need to be just as prepared.
Never attend a disciplinary meeting without a support person.
Ask for allegations in writing.
Record your responses (not secretly—but by taking written notes or following up in writing).
Keep a timeline of events.
Don’t resign under pressure unless advised—it can close your claim options.
