Employers get this wrong constantly. A short call will tell you whether yours did. Call 1800 UNFAIR (1800 863 247). The first call is free, with no obligation.
What the Commission looks at
When deciding whether a performance dismissal was fair, the Fair Work Commission weighs up a set of factors. Two of them matter enormously in performance cases:
Were you warned? If the dismissal was about unsatisfactory performance, the Commission specifically considers whether you had been warned about that performance before you were dismissed. Sacking someone for performance out of the blue, with no prior warning, is hard for an employer to defend.
Were you given a chance to respond and improve? You should have been told what the problem was, given a real opportunity to respond, and given a reasonable chance to lift your performance, including any training or support you would reasonably need.
The Commission also looks at whether there was a valid reason connected to your capacity or conduct in the first place. "Performance" has to be a genuine, defensible reason, not a convenient label.
Common ways performance dismissals go wrong
- no warning at all, just a termination
- a vague "you're not meeting expectations" with no specifics and no chance to improve
- a warning given and then dismissal the same week, with no real opportunity to change
- "performance" used as cover for something else, like getting rid of someone who complained
- no support or training offered, just criticism
If any of that matches your experience, it is worth a conversation.
It is about fairness overall
No single factor decides it. A dismissal can be found unfair because the process was defective even where there was some genuine performance concern. Equally, a fair process can survive the odd flaw. These are judgement calls, which is exactly why it helps to have someone assess yours who sees these cases regularly.
Small business is different
If your employer had fewer than 15 employees, a separate code applies, and it still generally requires a warning and a chance to improve for performance dismissals. See small business dismissals.
The 21 day deadline
You generally have 21 days from the day the dismissal took effect to lodge. The Commission rarely extends it, so do not wait.
Find out where you stand
Whether your performance dismissal was fair turns on the warnings you got, the chance you were given, and whether "performance" was the real reason. That is worth talking through with someone who assesses it every day.
Call 1800 UNFAIR (1800 863 247). The first call is free and there is no obligation. Monday to Friday 9am to 9pm, weekends 9am to 5pm.
We are paid agents, not lawyers. We represent employees at the Fair Work Commission and we will tell you honestly whether it is worth pursuing.