Why Historical Allegations Can Make a Dismissal Unfair
Some employees are shocked to be sacked over incidents that happened months ago—sometimes even longer. You might be told your conduct from weeks or months back was “the final straw.” But in many cases, the employer never raised the issue when it happened, never gave you a chance to respond, and suddenly decides to end your employment without warning. This kind of delayed reaction can be legally problematic.
The Fair Work Commission expects employers to act promptly when workplace issues arise. If your employer was aware of a concern and did nothing about it at the time, it becomes difficult for them to later argue that the same issue justifies your dismissal. Time matters. Delay can suggest that the concern wasn’t serious—or at least, not serious enough to justify termination without proper process.
A common example is when someone is fired based on a collection of minor past incidents that were never formally addressed. The employer might try to build a case out of old emails, informal chats, or performance quirks from months earlier. But if those incidents were never raised with you, and no formal warnings were issued, the Commission may find the dismissal unfair.
Employees have a right to procedural fairness. That includes being made aware of allegations, being allowed to respond, and being given a genuine opportunity to improve. It doesn’t matter whether the issue is performance-based, conduct-related, or reputational—your employer can’t spring a dismissal on you based on dusty accusations that were left unresolved.
If you've been fired over something you thought had already passed or wasn’t treated as serious at the time, you may have a strong case. The law does not allow employers to sit on their hands and then use stale allegations as a smokescreen for other motives. The Commission looks at how timely the employer was in addressing the problem, and whether you were treated fairly throughout.
