Being performance managed or facing allegations
If your employer later dismisses you and you bring an unfair dismissal claim, the Fair Work Commission will look back at this stage. Under s 387 it considers, among other things:
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- whether there was a valid reason related to your capacity or conduct;
- whether you were told the reason — clearly, and before the decision was made;
- whether you had a real opportunity to respond;
- whether the employer unreasonably refused to let you have a support person at discussions about dismissal; and
- if the issue is performance, whether you were warned before being dismissed.
That is why the employer's letters and meetings exist, and why your written responses matter so much. Responding to workplace allegations walks through how to answer a show-cause letter or a performance plan, point by point.
If the pressure started after you spoke up
Under the general protections, an employer must not take adverse action against you because you exercised a workplace right. You do not have to be dismissed for this to apply. Adverse action includes injuring you in your employment, altering your position to your prejudice, and threatening to do either (s 342). Coercing you to use, or not use, a workplace right is separately prohibited (s 343).
If this is happening while you are still employed, you can ask the Fair Work Commission to deal with it as a non-dismissal general protections dispute (s 372). That route has no 21-day limit, but delay makes any claim harder to prove. See general protections and sacked for speaking up.
Put it in writing
Most of what decides these disputes is what was written down at the time. The Act itself insists on writing at the points that matter: a flexible working request and the employer's answer (ss 65, 65A), notice of termination (s 117), and the information an award consultation clause usually requires before a redundancy. Do the same yourself:
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- Ask for vague allegations or targets to be put in writing, with dates and specifics.
- Confirm verbal conversations by email the same day: "To confirm what we discussed today…". A reply that doesn't dispute your summary is useful. So is one that does.
- Raise concerns when they arise, in writing — unrealistic targets, missing training, the timing of a plan that started straight after a complaint. The same point made months later looks reconstructed.
- Keep your own copies of your contract, payslips, position description, reviews and the relevant emails, somewhere other than your work account. Access usually ends the moment employment does.
Support persons
If you ask to bring a support person to a discussion about your possible dismissal, the employer must not unreasonably refuse. If it does, that counts against it in an unfair dismissal claim (s 387(d)). The limits are worth knowing:
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- You have to ask. The employer has no general duty to offer one, although many do.
- It covers discussions relating to dismissal, not every performance conversation or ordinary warning.
- A support person is not an advocate. They are there to support you and take notes, not to argue your case. Refusing a lawyer or advocate is not the same as refusing a support person.
- The employer does not have to wait indefinitely if the person you nominate is not available.
"Without prejudice" — what it does and doesn't protect
"Without prejudice" is a label put on communications made in a genuine attempt to settle a dispute. The idea is that both sides can make offers and concessions without those being used against them as evidence if the dispute goes to a hearing.
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What it generally does
- Stops genuine settlement offers being used in court as evidence about the dispute itself (in federal courts, Evidence Act 1995 (Cth) s 131).
- Lets you make an offer or a concession without it being treated as an admission.
What it does not do
- Protect something just because it carries the label. What counts is whether the communication was a genuine attempt to settle.
- Stop the emails being used to prove that a settlement was reached. A "without prejudice" exchange can still create a binding agreement.
- Operate as a strict rule in the Fair Work Commission, which is not bound by the rules of evidence (s 591).
Resign, negotiate an exit, or wait?
When a job is clearly ending, people usually have three paths. None is right for everyone, but each has consequences you should understand before choosing.
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| What it means for your rights | |
|---|---|
| Resign | Usually ends any unfair dismissal or general protections dismissal claim. A resignation counts as a dismissal only if the employer's conduct left you no real choice — and you have to prove that. Being performance managed, or shock at an offer, is not enough on its own. "Resign or be sacked" can be a forced resignation. |
| Negotiate an exit | You leave on agreed terms, usually recorded in a deed of release in which you give up your claims in exchange for a payment or other terms. How your departure is described — resignation or redundancy — affects your reference, your statement of service and potentially your tax. |
| Wait | If you are dismissed, the dismissal claims stay open, but only for 21 days. The employer controls the timing and the reasons it puts on the record, and your next steps are made under deadline pressure. |
Things that are true whichever path you take
- Your accrued entitlements are owed anyway. Untaken annual leave must be paid out when employment ends (s 90), and so must notice or pay in lieu. They are not part of what the employer is offering you.
- If the reason is really redundancy, you may be entitled to redundancy pay, and part of a genuine redundancy payment is tax free. That concession depends on a genuine redundancy and a dismissal. It is not available if the paperwork records a resignation. Confirm the tax position with the ATO or an accountant. See redundancy.
- If you have a flexible working option you have not used, and later say you had no choice but to resign, the unused right will usually count against you.
What you can — and cannot — be made to sign
- You do not have to sign a resignation letter. An ultimatum — resign, or be sacked or reported to the police — can make a resignation a dismissal in law.
- You do not have to sign a deed or settlement on the spot. Nothing binds you until you agree. There is no statutory cooling-off period afterwards, so the time to think is before you sign.
- A signed deed is very hard to undo. It can be set aside only on narrow grounds, such as unconscionable conduct, undue influence or duress, and the bar is high.
- Some things a release does not stop. It cannot prevent you making a complaint to the Fair Work Ombudsman, giving evidence when you are compelled to, or lodging a workers' compensation claim.
- A deed usually ends every claim arising from your employment, including ones you haven't thought of. If you have another claim — unpaid wages, discrimination, an injury — the deed will usually end it too, so consider getting professional advice on it before you sign.
Settlement deeds carry clauses that matter long after the money is paid, such as confidentiality, non-disparagement, a statement of service, and the tax treatment of the payment. See settlement deed review for what the common clauses do and the traps people miss.
The time-limit trap
The 21 days to lodge an unfair dismissal or general protections dismissal claim runs from the day the dismissal takes effect. It does not run from the end of negotiations, an internal appeal, or when you get your final pay.
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- A dismissal takes effect when it is communicated to you — orally, in writing, or ordinarily by an email reaching your usual inbox.
- With payment in lieu of notice, employment usually ends immediately. With notice to work out, it ends when the notice period expires.
- Late claims are accepted only in exceptional circumstances. Not knowing the time limit is not enough. Nor, generally, is trying to settle with your employer, or waiting for an internal appeal: the Full Bench has upheld decisions that you could have lodged while those efforts continued (Butterly v Boldstate Corporation [2014] FWCFB 7474; Misconi v Negri Contractors (Vic) Pty Ltd [2019] FWCFB 654). Having disputed the dismissal with your employer can help, but it is only one factor. Don't rely on it.
- Lodging does not end the conversation. Many claims are resolved at the Commission's conciliation conference, so filing on time protects your position without closing the door on a settlement.
Flexible working requests
Sometimes the dispute is about how you work, not whether you work. You can make a formal request for flexible working arrangements under s 65 if you have 12 months' service and you fit one of the circumstances below. A casual qualifies only after 12 months as a regular casual, with a reasonable expectation of continuing work. The circumstances are that you:
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- are pregnant, or care for a child of school age or younger;
- are a carer, have a disability, or are 55 or older;
- are experiencing family and domestic violence, or caring for a family or household member who is; or
- are returning from parental leave and want to work part-time.
The request must be in writing and say what change you want and why. The employer must reply in writing within 21 days. It can refuse only after discussing the request with you, genuinely trying to reach agreement, and considering the consequences for you, and only on reasonable business grounds, such as cost, the impact on other staff, or a significant loss of productivity or customer service. A refusal must explain those grounds, and say whether there are other changes the employer would agree to (s 65A).
If the employer refuses, or doesn't reply within 21 days, try to resolve it at work first. Then either of you can take it to the Fair Work Commission (s 65B). The Commission first deals with it by conciliation, and can then arbitrate. It can order the employer to grant the request or make other changes (s 65C). Making the request is also a workplace right, so you are protected from adverse action for making it.
If you are in the WA state system
If you work in Western Australia for a sole trader, partnership or other unincorporated business, or in the State public sector or local government, different rules apply. An unfair dismissal claim goes to the WA Industrial Relations Commission within 28 days. The federal general protections are generally not available against those employers. Flexible working requests come under the Minimum Conditions of Employment Act 1993 (WA). See the WA state system.