Termination decisions are under greater scrutiny
We are seeing a clear shift in the way employees respond to the end of employment.
Employees are increasingly willing to challenge dismissal decisions, and many are more aware of their potential rights under unfair dismissal and general protections laws.
The increased use of AI tools has also made it easier for employees to prepare applications, letters and complaints that appear structured, confident and legally framed.
This does not mean every claim has merit. However, it does mean employers should assume that termination decisions may be tested and should ensure the process leading to dismissal is capable of being defended.
The Fair Work Commission has also reported record lodgements, with increased pressure across dismissal-related matters. For employers, the message is clear. Ending employment should not be approached as a quick meeting, a short letter and the hope that everyone moves on. Termination is not a single event. It is the final step in a broader process.
Termination is the final step, not the whole process
It can be tempting to think of dismissal as the termination meeting, the letter and the employee’s final day. In practice, the conversation where the decision is communicated is rarely what determines whether the dismissal survives a challenge. By the time an employer reaches that point, the outcome has usually already been shaped by what has occurred beforehand.
The Fair Work Commission does not simply ask whether an employer had a good reason to dismiss an employee. It considers whether the dismissal was harsh, unjust or unreasonable. That requires consideration of the whole employment journey leading to the decision, including how the issue was identified, how it was put to the employee, whether the employee was given a fair opportunity to respond, and whether the final decision was made with an open mind.
A termination is the end of a process. Where that process is sound, the decision is usually easier to defend. Where the process is flawed, even a decision that appears reasonable on its facts can become difficult to sustain.
The four pillars of a defensible termination process
There are four core elements that support a defensible termination process: preparation, evidence, response and documentation.
Preparation
Preparation is where defensibility is built, often well before termination is being actively considered.
For performance concerns, preparation means the employee knew what was expected of them, understood where they were falling short and was given a genuine opportunity to improve. This will usually involve clear expectations, meaningful feedback, a fair timeframe, relevant support and an opportunity for the employee to demonstrate improvement.
For conduct concerns, preparation means the relevant policy, standard or direction was in place and known to the employee. An employee should understand the workplace standard before being accused of breaching it.
One of the most common failures in termination processes is that employers act too quickly after waiting too long. A concern may have existed for months, but it has been tolerated, worked around or discussed informally without proper follow-up. Then, when frustration reaches a tipping point, the business wants to move immediately to dismissal.
This is where risk often begins. Taking the time to set expectations, communicate concerns and create a clear record is not unnecessary bureaucracy. It is what allows the business to show that the employee was treated fairly and that the final decision was based on a proper process.
For managers, this is also why performance management, discipline and termination training can be valuable before difficult decisions arise.
Evidence
A reason for dismissal is only as strong as the evidence that supports it.
For performance matters, evidence may include position descriptions, KPIs, performance discussions, written feedback, examples of errors, client complaints, review notes, records of support offered, training provided and the outcome of any improvement process.
For misconduct matters, evidence may include contemporaneous file notes, emails, messages, system records, witness accounts, investigation notes and findings that properly test the allegation before a conclusion is reached.
The timing of evidence is important. Evidence should be gathered before the decision is made, not assembled afterwards to justify an outcome that has already been reached. If an employer cannot support the reason for dismissal at the time the decision is made, the decision is likely to be vulnerable if it is later challenged.
A useful practical test is to ask what the business could place before an external decision-maker if required. If the answer relies mainly on memory, frustration or general impressions, the evidentiary foundation may not be strong enough.
Response
Procedural fairness depends on the employee having a genuine opportunity to respond before the final decision is made.
This means the concern, allegation or proposed reason for dismissal should be put to the employee clearly and specifically. The employee needs to understand what they are being asked to answer and should be given a reasonable opportunity to provide their response.
This also means allowing a support person where appropriate and properly considering what the employee says before reaching a final decision.
This is a point at which employers can unintentionally undermine an otherwise legitimate process. If the decision has already been made and the meeting is held only to create the appearance of consultation, the process is unlikely to be considered fair. A polite meeting is not the same as a fair process.
The employee’s response must be capable of influencing the outcome. If the response cannot change anything, the meeting is likely to be seen as a formality rather than a genuine opportunity to respond.
Documentation
Documentation is what ties the process together and makes it provable.
A sound record should show the expectations that were set, the concerns that were raised, the feedback that was given, the support or training offered, the allegation or issue put to the employee, the employee’s response, how that response was considered and the reasons for the final decision.
Records made at the time carry far more weight than an account reconstructed months later, particularly once a claim has been filed and memories have started to fade.
A useful habit is to write each step with the expectation that someone outside the business may one day read it. The purpose is not to create paperwork for its own sake. The purpose is to demonstrate, step by step, that the process was fair, the reason was sound and the outcome was not pre-determined.
Without proper documentation, even a well-managed process can become difficult to prove.
Do not forget general protections
Before any termination decision is communicated, employers should also consider whether there is anything about the surrounding circumstances that could give rise to a general protections claim.
Relevant questions may include whether the employee has recently made a complaint or enquiry, taken or requested leave, raised a workplace right, disclosed a medical issue, raised safety concerns or identified a protected attribute such as pregnancy, injury, disability or carer’s responsibility.
General protections claims can be particularly difficult because the reverse onus applies. This means the employer may need to prove that the decision was not made for a prohibited reason.
This is why timing and context matter. Even where there is a legitimate performance or conduct reason, the broader circumstances should be carefully considered before action is taken.
The four pillars are the process
Preparation, evidence, response and documentation should not be treated as a checklist to rush through at the end of employment. They are the process itself, beginning from the first sign of a problem and continuing through to the final decision.
Preparation lays the foundation. Evidence supports the rationale. Response ensures fairness. Documentation makes the process provable.
Treating termination as a single moment is what gets employers into difficulty. Treating it as a process gives a sound decision the best chance of standing up if it is challenged.
In the current environment, employees have greater access to information, increased awareness of their rights and more tools to help them prepare claims. Employers cannot afford to rely on instinct, frustration, assumptions or informal conversations when ending employment.
A defensible termination does not start with the termination meeting. It starts with clear expectations, timely feedback, proper evidence, procedural fairness and records that demonstrate how and why the decision was made.
If those steps are missing, the risk is not only that the business made the wrong decision. The risk is that the business may be unable to prove it made the right one.
Before making the final decision
Before ending employment, employers should pause and ask whether they can clearly explain the reason, prove the basis for the decision, show the employee had a genuine opportunity to respond, identify and manage any general protections risk, and produce documentation that supports the process followed.
If the answer to any of those questions is unclear, the business should pause before acting.
Once a termination decision is communicated, it is much harder to undo. Getting advice before the final step is not about slowing the business down. It is about protecting the decision, the process and the business.
If you are considering termination, or are unsure whether the process leading to dismissal is defensible, Effective Workplace Solutions can help you assess the risk, identify any gaps and determine the right next step before action is taken.
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.