How to respond to fair work claims
A complete guide to responding to unfair dismissal, general protections, and underpayment claims in Australia. Includes timelines, defence strategies, and links to termination policy templates.
Written by
Georgia Morgan
General information only – not legal advice
This guide provides general information about Fair Work claims. It does not constitute legal, HR, or professional advice and should not be relied on as a substitute for advice specific to your business, workforce, or circumstances.
How to respond to a claim in 6 steps
Follow this process when you receive a Fair Work claim.
Receive and review the claim
Carefully review the claim documentation to understand what is being alleged and the deadlines for response.
Tips:
- Note the type of claim (unfair dismissal, general protections, underpayment, etc.)
- Check the deadline for your response (usually 7-21 days)
- Identify the specific allegations being made
- Don't ignore the claim - failure to respond can result in default judgment
Gather relevant documentation
Collect all documents related to the employee's employment and the circumstances of the claim.
Tips:
- Employment contract and position description
- Performance reviews, warnings, and disciplinary records
- Relevant policies and procedures
- Payroll records, timesheets, and pay slips
- Any correspondence with the employee
Seek legal advice
Consult with an employment lawyer or workplace relations specialist before responding to the claim.
Tips:
- Fair Work claims have strict time limits and procedural requirements
- Early legal advice can help you understand your options and risks
- Consider the cost of defending vs settling the claim
- Your lawyer can help prepare your response and represent you
Prepare your response
Prepare a written response addressing each allegation and providing your version of events.
Tips:
- Address each allegation specifically and factually
- Attach supporting documentation
- Be honest - don't exaggerate or misrepresent facts
- Meet the deadline for lodging your response
Attend conciliation
Participate in the conciliation process to attempt to resolve the matter without a hearing.
Tips:
- Most claims proceed to conciliation first
- Conciliation is informal and aims to reach a mutual agreement
- Consider what outcome you would be willing to accept
- Bring documentation and authority to make settlement decisions
Resolve or proceed to hearing
Either reach a settlement at conciliation or prepare to defend the claim at a formal hearing.
Tips:
- If settled, ensure the agreement is documented properly
- If proceeding, prepare witness statements and evidence
- Consider the costs, time, and stress of a hearing
- Hearings are more formal and decisions are binding
Maintain compliant records
RosterElf provides detailed audit trails and records that support Fair Work compliance. Built for Australian small businesses.
Types of fair work claims
Understand the different types of claims and their time limits.
| Claim type | Description | Time limit | Forum |
|---|---|---|---|
| Unfair dismissal | Claim that termination was harsh, unjust, or unreasonable | 21 days from dismissal | Fair Work Commission |
| General protections (dismissal) | Claim that termination was for an unlawful reason (discrimination, workplace right) | 21 days from dismissal | Fair Work Commission or Federal Court |
| General protections (non-dismissal) | Claim of adverse action other than dismissal | 6 years | Federal Court or Federal Circuit Court |
| Underpayment | Claim for unpaid wages, entitlements, or superannuation | 6 years | Small Claims (up to $100k) or Federal Court |
| Discrimination | Claim of unlawful discrimination based on protected attributes | Varies by jurisdiction | Human Rights Commission, state tribunals, or courts |
Common defence strategies
Potential defences depend on the type of claim and facts of your case.
Valid reason for dismissal
Demonstrate there was a valid, work-related reason for termination
Supporting evidence: Performance records, warnings, policy breaches, restructure documents
Procedural fairness
Show the employee was given opportunity to respond before dismissal
Supporting evidence: Meeting notes, show cause letters, employee responses, support person attendance
No protected attribute/right
Demonstrate the action was not because of a protected reason
Supporting evidence: Timing, consistent treatment, legitimate business reasons
Correct payment
Show wages and entitlements were correctly calculated and paid
Supporting evidence: Payroll records, timesheets, award calculations, employment records
Jurisdictional objection
Challenge eligibility (e.g., minimum employment period not met)
Supporting evidence: Employment dates, employee count, income threshold
Important: The strength of your defence depends on your specific circumstances and documentation. Good record-keeping throughout employment is your best protection against claims.
Typical claim timeline
What to expect from the Fair Work process.
Receive claim notification
Day 0
Deadline to lodge response (unfair dismissal)
Day 7
Deadline to lodge response (general protections)
Day 21
Conciliation conference scheduled
Within 4-8 weeks
If not settled, hearing scheduled
Within 3-6 months
Decision issued
Usually within 2-4 weeks of hearing
Timeframes are indicative and may vary based on claim complexity and Commission schedules.
Frequently asked questions
- Unfair dismissal is when an employee is dismissed in a way that was harsh, unjust, or unreasonable. To claim unfair dismissal, the employee must have completed the minimum employment period (6 months for businesses with 15+ employees, 12 months for small businesses) and earn below the high income threshold or be covered by an award/enterprise agreement.
- General protections claims relate to adverse action taken against an employee for an unlawful reason, such as exercising a workplace right (e.g., taking leave, raising a complaint), having a protected attribute (e.g., race, age, disability), or engaging in union activity. Unlike unfair dismissal, there's no minimum employment period.
- Adverse action includes: dismissing an employee, injuring them in their employment, altering their position to their prejudice, discriminating in hiring, or refusing to employ. The action must be because of a protected reason to be unlawful.
- Underpayment claims are about recovering money owed - unpaid wages, incorrect penalty rates, missing superannuation, etc. They can be brought up to 6 years after the underpayment occurred. Small claims (up to $100,000) can be heard in a simpler process.
Regulatory sources
This guide is aligned with official Australian workplace regulations.
Related guides
More resources for workplace compliance.
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