You hand the employee the allegations and the termination letter in the same sitting. They’ve had no time to respond. The Commission will rule this is not a genuine opportunity to respond, no matter what was said in the room.

The dismissal letter says “performance.” The witness statement says “behaviour.” The text messages reference “attitude.” If you can’t articulate the single, specific, valid reason — neither can the Commission, and your defence falls apart.

The employee asks to bring a support person. You say no. Or you don’t tell them they’re allowed one. Or you push back on who they choose. s387(d) lights up immediately, and your procedural fairness defence is in trouble.

You’ve been frustrated for months. You’ve vented to your business partner. You’ve made notes on your phone. But there’s not a single written warning the employee has actually been given and signed for. The Commission looks at s387(e) and finds you didn’t warn them — and a dismissal “out of the blue” almost always falls.

If it isn’t written down, it didn’t happen. This is the single most painful lesson small business owners learn at conciliation. Verbal warnings, “everyone in the team knew,” “we had a chat about it” — none of it carries weight without a paper trail.

Almost never — and it’s one of the fastest ways to lose an unfair dismissal claim. Combining allegations and termination into a single meeting strips the employee of any meaningful chance to respond. The Fair Work Commission consistently rules these dismissals procedurally unfair, regardless of whether the reason was valid. The only narrow exception is summary dismissal for serious misconduct — where the conduct is so serious it makes continued employment untenable (theft, assault, fraud, serious safety breach). Even then, you still need to investigate, give the employee a chance to respond to the allegation, and document everything. “On the spot” dismissals for performance or attitude are a red-flag-waving signal at the Commission.

There’s no fixed legal minimum, but the rule of thumb is 24 to 48 hours at the very least for straightforward matters, and longer for complex or serious allegations. The Commission looks at whether the time was reasonable in the circumstances — taking into account the complexity of the allegations, whether the employee needs to gather documents or speak to others, whether they need to arrange a support person, and whether they’re affected by illness, English as a second language, or any other relevant factor. If you’re rushing the timeline because you want it over with, you’re probably rushing it too much.

The Small Business Fair Dismissal Code applies to businesses with fewer than 15 employees (headcount, including casuals). It’s a simplified, checklist-based process for handling dismissals — and following it properly gives small business employers a strong defence against unfair dismissal claims. The Code requires the employer to give the employee reasons for the dismissal and a chance to respond, except in summary dismissal situations involving serious misconduct. If you can show you followed the Code (and you have the paperwork to prove it), the dismissal is generally deemed fair. The key word is “prove.” Verbal assurances that you “followed the Code” won’t hold up — you need written warnings, meeting notes, the allegations letter, and the employee’s response on file.

Yes — and unreasonably refusing one is captured under s387(d) of the Fair Work Act. Any employee facing a meeting that could result in disciplinary action, including dismissal, has the right to bring a support person of their choice. That person can be a friend, family member, colleague, or union representative. Their role is to provide support, take notes, and observe — not to advocate, negotiate, or speak on the employee’s behalf (though small business owners often allow some latitude here in practice). You should proactively offer the right to a support person in the meeting invitation letter, in writing. Don’t wait for them to ask. “I didn’t know I was allowed one” is a classic line in an unfair dismissal witness statement — and one that makes the Commission frown.

You can still proceed — but the bar for doing so is higher. You need to make multiple, documented attempts to engage the employee. Send the show-cause letter or meeting invitation by every reasonable means (email, registered post, SMS), with a clear written record of each attempt. Give them a final opportunity in writing. If they still refuse to engage and you proceed to dismiss them, your defence is that you offered the opportunity to respond and they declined it — which is different from never offering it in the first place. This is high-risk territory — get expert input before you act, because exactly how you’ve documented those attempts will be picked apart at the Commission.

Not reliably. A verbal warning isn’t worth the paper it isn’t written on. The Fair Work Commission consistently gives little weight to warnings the employer can’t actually produce in writing. If you’ve been raising issues verbally for months, your paper trail is essentially empty — and a dismissal at the end of it looks like it came “out of the blue” from the employee’s perspective. The fix going forward is simple: every performance or conduct conversation that matters gets followed up in writing, ideally by email, summarising what was discussed, what’s expected, and by when. Keep copies. Have the employee acknowledge receipt. If you’re staring at a situation right now where the warnings have all been verbal, stop and get advice before you act — there’s usually a way to reset the process, but you need to do it correctly.

The procedural fairness obligations in a redundancy are different — but no less important. With a genuine redundancy, the obligation is consultation, not “respond to allegations.” The employee must be consulted about the proposed change, given information about the redundancy, given an opportunity to put forward alternatives (including redeployment), and have their feedback genuinely considered. If you skip consultation, even a perfectly genuine redundancy can be challenged. We cover this in detail in our Redundancy Sprint. If you’re not sure whether your situation is a dismissal or a redundancy, that distinction alone is worth a 30-minute call before you act — calling something a “redundancy” when it’s really a dismissal in disguise is a fast track to an unfair dismissal claim and a general protections claim.

A valid reason is the substance of the dismissal — was there a genuine, fact-based reason related to the employee’s capacity or conduct? An opportunity to respond is the process — did the employee get a fair shot at defending themselves before you decided? You need both. A valid reason without procedural fairness is still an unfair dismissal. Procedural fairness without a valid reason is also an unfair dismissal. The Fair Work Commission looks at all the s387 factors and weighs them together — which is why small business owners with rock-solid reasons still lose claims they assumed would be open-and-shut.

Stop. Don’t dismiss the employee today. The single most important thing you can do is press pause. Almost every flawed dismissal process can be reset before the dismissal happens — but once the termination is delivered, it can’t be undone, and you’re playing defence at the Commission. Book a Termination Sprint straight away. We’ll look at what’s already happened, identify the gaps, and help you decide whether to reset the process from a clean point, continue from where you are with corrective steps, or take a different path entirely. The cost of one Sprint is dramatically less than the cost of the cheapest unfair dismissal settlement we’ve ever seen.

Fresh HR Insights specialises in helping Australian small business owners navigate dismissals fairly, lawfully, and confidently. Our Termination Sprint is built for exactly these situations — focused, practical, expert-led support to get you through the process without the panic. We work with businesses across the Gold Coast, Brisbane, South East Queensland, and Australia-wide via Zoom. For ongoing support, our monthly HR Support Packages start at $295 + GST per month with no lock-in contracts.

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