Don’t Panic. Start Here.
Is there a deadline? Yes, you have 21 days from your dismissal to file a claim. This is the most important first step.
What do I have to prove? Just that it was more likely than not that your dismissal was unfair, harsh or unreasonable.
What should I do right now? Start writing down everything you remember and save every relevant document and write done all important dates such as commencement date with the Company, terminations date, the dates of any prior warnings you received and e.tc.
What documents do I need as proof?
Building your case starts with gathering the right paperwork. Think of this as creating your “paper trail” – each document tells part of your story. Here’s your essential checklist:
Proof of Employment
Your contract, offer letter, and payslips form the foundation of your case. These documents establish your employment relationship and the terms under which you were hired.
Proof of Good Performance
Gather any positive performance reviews, emails where your manager praised your work, awards you’ve received, or documentation of bonuses. These counter any claims that you were dismissed for poor performance.
Proof of the Dismissal
Keep your termination letter, any emails about your dismissal, or even text messages if that’s how you were informed. The method doesn’t matter – what matters is having proof of when and how it happened.
Company Policies
Locate your employee handbook, code of conduct, or any performance management policies. These documents often outline the procedures your employer should have followed before dismissing you.
Your Personal Notes
This is critical – write a detailed timeline of events while everything is still fresh in your memory. Include dates, times, who was present, and what was said. This contemporaneous record can be incredibly powerful evidence.
Lawyer Tip: Create a simple spreadsheet or document to track what evidence you have and what you still need to collect. Organisation now will save you stress later.
What about digital evidence like texts or Slack messages?
In today’s workplace, some of the most important conversations happen digitally. The Fair Work Commission regularly accepts and values digital evidence, understanding that modern workplaces communicate through various channels.
The Commission accepts evidence from:
- Emails (both work and personal accounts)
- Text and WhatsApp messages
- Slack or Microsoft Teams chats
- Social media posts and messages
How to save your digital evidence properly
Take screenshots immediately – don’t wait. Ensure the date and time stamps are clearly visible in your screenshots. Save everything to a personal cloud drive or external storage that your employer cannot access. If possible, also forward important emails to your personal email address before losing access to your work account.
Remember, digital evidence can disappear quickly. Your employer might delete your access to work systems, or messages might be automatically deleted after a certain period. Act fast to preserve this crucial evidence.
How do I use witnesses to support my claim?
Witness statements can transform your case from “he said, she said” into a compelling narrative backed by multiple perspectives. But approaching witnesses requires care and strategy.
In addition, this will be important at the later stage if your matter proceeds to a formal hearing and is not settled in the initial stages of conciliation.
Who should you ask?
Current or former colleagues who directly witnessed relevant events make the strongest witnesses. This might include people who:
- Were present during key conversations
- Observed discriminatory behaviour
- Can confirm your good performance
- Witnessed procedural failures in your dismissal
What should their statement include?
A witness statement must be a first-hand account – not hearsay or speculation. Ask your witness to write down what they personally saw and heard, arranged in chronological order. They should include specific details like dates, times, and exact words used where possible. The statement must be signed and dated.
Here’s an important point: A witness doesn’t need to have seen everything. Even a statement confirming you were a reliable employee or that they overheard a single crucial conversation can significantly strengthen your case. Don’t dismiss potential witnesses just because they only saw part of the picture.
What if I don’t have any written proof?
If you’re reading this section with a sinking feeling because you lack written evidence, take a deep breath. Many successful unfair dismissal claims rely primarily on witness testimony and, most importantly, your own detailed statement and testimony.
The Fair Work Commission understands that not every workplace interaction is documented. Commissioners are experienced in assessing credibility and will listen carefully to your account of what happened. Your goal is to be credible, consistent, and detailed in your recollection.
Without written proof, focus on:
- Creating a comprehensive timeline of events from your memory
- Identifying any witnesses who can corroborate parts of your story
- Being honest about what you remember and what you don’t
- Maintaining consistency in your account across all documents and testimony
Remember, your employer also has to prove their version of events. If you present as honest and your account is plausible and consistent, you can still succeed.
Can my employer stop me from getting my documents?
Your ex-employer cannot simply refuse to provide documents that belong to you or that you need for your case. If they’re being difficult, you have options.
Start by making a formal written request for specific documents. Be clear about what you need and give them a reasonable deadline (usually 7-14 days). Keep a copy of this request.
If they still refuse after you’ve filed your claim, you can ask the Fair Work Commission for an “Order to Produce Documents.” This legally compels your employer to provide the evidence. The Commission takes these orders seriously, and employers who fail to comply can face consequences.
Don’t let document access issues stop you from filing within the 21-day deadline. You can file your claim first and sort out document access later.
Is any of my evidence off-limits or illegal?
This section is crucial – using the wrong evidence can damage your entire case.
Secret Voice Recordings
This is the most common and serious pitfall. In most Australian states, it is illegal to record a private conversation without the consent of all parties involved. Not only are illegally obtained recordings usually inadmissible as evidence, but you could face criminal charges for making them. Queensland is the only state with a one-party consent rule, but even there, the recording must be for a lawful purpose.
“Without Prejudice” Information
Documents or conversations clearly marked “without prejudice” are typically used in settlement negotiations and usually cannot be used as evidence. This protection encourages open settlement discussions.
Confidential Legal Advice
Any communication between you and your lawyer is privileged and cannot be used as evidence. This protection ensures you can be completely honest with your legal representative.
Illegally Obtained Documents
Taking confidential company documents without permission, especially after your employment ends, can backfire spectacularly. Stick to documents you legitimately have access to.
What are common mistakes I should avoid?
Learning from others’ mistakes can save your case. Here are the critical errors to avoid:
- Waiting too long: The 21-day deadline is strict and rarely extended. The Commission has very limited discretion to accept late applications. Don’t assume you’ll get an extension – file on time, even if your evidence isn’t perfect.
- Not writing things down: Memories fade faster than you think. What seems unforgettable today will be fuzzy in a few weeks. Write your timeline of events now, while details are fresh. Include emotions, exact phrases used, and seemingly minor details that might prove important later.
- Exaggerating or being dishonest: Your credibility is your most valuable asset in an unfair dismissal claim. One proven lie or significant exaggeration can destroy your entire case. Stick to the facts, even when they don’t perfectly support your position. Commissioners respect honesty.
- Discussing your case on public social media: Venting on Facebook or LinkedIn might feel therapeutic, but it can seriously damage your claim. Your posts can be used as evidence against you, and public criticism of your employer might be seen as bringing them into disrepute. Keep your case private until it’s resolved.
- Destroying evidence: Never delete emails, messages, or documents, even if they seem unhelpful to your case. Destroying evidence can be seen as an attempt to mislead the Commission.
I have my evidence, what do I do next?
You’ve gathered your evidence – now it’s time for action. Follow these steps in order:
- Organise Your Evidence: Group your documents and witness statements chronologically. Create a simple index listing what you have. This organisation will help you present your case clearly and find documents quickly when needed.
- Seek Professional Advice: Now that you’re organised, it’s the perfect time to speak with Fair Workplace Solutions. We offer consultation and would be happy to help. Bring your organised evidence to make the most of your time. It is important to get legal advice to understand the prospects of your matter, the strengths, weaknesses so that you better understand if you will be successful in your claim and how much you will be able to claim. We can also help with appeals and other options.
- Lodge Your Application: Fill out the Unfair Dismissal Application Form (Form F2) on the Fair Work Commission website. Be thorough but concise. You can elaborate later – for now, focus on meeting the deadline.
- Prepare for Conciliation: Your first step will likely be an informal conciliation conference. This is your chance to resolve the matter without a formal hearing. Have your key points ready, know what outcome you want, and be prepared to negotiate. About 80% or 2/3 of matters resolve at this stage.
- Stay Calm and Professional: Throughout this process, maintain your composure. The Commission values professionalism, and staying calm will help you think clearly and present your best case.
Remember: You’re Not Alone
Facing unfair dismissal is stressful and emotionally draining. But remember, the system is designed to be accessible to everyday workers. You don’t need perfect evidence or expensive lawyers to succeed. What you need is to act quickly, be organised, stay honest, and tell your story clearly.
The Fair Work Commission processes thousands of these claims each year. The Commissioners understand that employees are often at a disadvantage when it comes to documentation and resources. They’re trained to look past the paperwork to find the truth of what happened.
Take it one step at a time. Start with the 21-day deadline, then gather what evidence you can, and move forward from there. Many people have successfully navigated this process before you, and you can too.
This guide provides general information only and doesn’t constitute legal advice. For advice specific to your situation contact Fair Workplace Solutions.