Since 7 July 2026, changes to the Fair Work Act have altered the way the Fair Work Commission can deal with some dismissal-related disputes. The details are technical, but the takeaway for any business is simple: some matters can now move through the Commission differently and, in certain unfair dismissal cases, can be decided without either side attending a conference or hearing. That makes what you write down before and at the time of a termination more important than ever.
What has actually changed?
In plain terms, four changes are worth knowing.
Some disputes no longer need to stop at the “was there actually a dismissal?” question first
In certain general protections dismissal and unlawful termination disputes, the Commission can begin dealing with the matter without first determining whether a dismissal or termination actually occurred. That removes what could previously be a preliminary issue before the dispute progressed.
Some unfair dismissal cases can be decided on the paperwork alone
Where both parties consent, and the Commission considers the matter can be adequately determined without them being present, it can make a decision without conducting a conference or holding a hearing.
The Commission has additional powers to deal with problematic or repeat applications
The reforms include new powers allowing the Commission, in certain circumstances, to restrict further applications after an application has been dismissed as frivolous, vexatious or having no reasonable prospects of success.
More functions can be delegated to senior Commission staff
Certain functions relating to unresolved general protections dismissal and unlawful termination disputes can now be delegated to appropriately senior Commission staff, rather than requiring a Commission Member.
None of this changes the legal test for unfair dismissal or what employers need to get right when terminating employment. What it changes is how some disputes can progress once a claim is made.
What the Fair Work changes mean in practice
You might not get a “practice round”
Where issues can be dealt with together rather than sequentially, you cannot assume there will be an early stage in the process to sort out gaps before the substantive questions are considered. You need your story straight from day one. Not just the legal box-ticking, but the actual reasons, process and evidence behind the decision.
Your paperwork might be all the Commission ever sees
If an unfair dismissal matter is decided on the papers, there is no conference or hearing to explain what happened, clear up ambiguity or add context face to face. Whatever is in the employee’s file, including performance records, warnings, meeting notes, correspondence and the termination letter, needs to tell the story clearly on its own.
Messy or thin records are a real risk
Weak documentation has always made a termination harder to defend. But where a matter is determined based on the written material, the quality of those records becomes even more important. An employer may have had a sound reason for its decision. If the file does not show what happened, what the employee was told or how the business reached that decision, proving it later can become much harder.
What should good termination documentation show?
If an employee challenges their dismissal, the employer may need to demonstrate both why the employee was dismissed and whether a fair process was followed. For example, if an employee is dismissed following ongoing performance concerns, the records should clearly demonstrate:
- What the performance concerns were;
- When they were raised with the employee;
- What expectations were communicated;
- Whether the employee was given an opportunity to respond;
- What support or opportunity for improvement was provided, where appropriate;
- Whether any warnings were issued; and
- Why the employer ultimately decided to terminate the employment.
A termination letter cannot fix a poorly managed process. Good documentation is the record of the process that came before it.
Your records should make sense to someone outside the business
If the file cannot tell the story without that explanation, there may be gaps in the process or the documentation supporting it.
Write things down when they happen, not after a claim arrives
- Made a workplace complaint;
- Exercised a workplace right;
- Taken personal or other protected leave;
- Disclosed an illness or injury;
- Raised a workplace health and safety concern; or
- Made a bullying, harassment or discrimination complaint.
These circumstances do not necessarily prevent a legitimate termination. But they do make it particularly important that the employer is clear about the genuine reason for its decision and that the evidence supports that reason.
Good termination processes start before the termination meeting
- Whether there is a valid and defensible reason for termination;
- Whether the employee has been informed of the relevant concerns;
- Whether the employee has had an appropriate opportunity to respond;
- Whether procedural fairness requirements have been met;
- Whether applicable Award, enterprise agreement or contractual requirements have been considered;
- Whether there are potential general protections or discrimination risks; and
- Whether the documentation supports the proposed decision.
Getting advice at this point gives the business an opportunity to identify gaps before the decision is made, rather than having to explain them afterwards.
The bottom line
The rules governing how some dismissal disputes are handled have changed. The need to get the termination itself right has not. Good documentation should not be something created because an employer is worried about an unfair dismissal claim. It should be the natural result of a fair and well-managed employment process. If a dismissal is later challenged, clear and contemporaneous records allow the business to demonstrate what happened, what was communicated, why decisions were made and whether the employee was treated fairly throughout the process. The time to prepare for scrutiny is not when a Fair Work application arrives. It is before the employee is dismissed.
Effective Workplace Solutions provides practical HR and workplace relations advice to employers across Australia, including performance management, disciplinary processes, employee terminations, unfair dismissal claims and general protections matters. If you are considering terminating an employee and are unsure about the process, obtaining advice before making the final decision can significantly reduce the risk of getting it wrong.
For further information on Unfair Dismissals, download our free guide.
Disclaimer: This article is general in nature and provides a summary only of the subject matter without the assumption of a duty of care by Effective Workplace Solutions. No person should rely on the contents as a substitute for legal or other professional advice.