What counts as a fair process before dismissal in Australia

A fair process before dismissal comes down to four questions the Fair Work Commission asks. Did you have a valid reason? Did you tell the person that reason? Did you give them a real chance to respond? And for performance issues, did you warn them first? Having a good reason isn’t enough on its own. How you got there matters just as much, and being able to show each step is what makes a process defensible.

Why this matters

Section 387 of the Fair Work Act 2009 sets out what the Commission must take into account when deciding whether a dismissal was harsh, unjust or unreasonable:

• Valid reason: a sound, defensible reason related to the person’s capacity or conduct, including its effect on the safety and welfare of others.
• Notified of the reason: you clearly told the person why.
• Opportunity to respond: they had a genuine chance to respond before you made the decision.
• Support person: you didn’t unreasonably refuse a request to have a support person in discussions about dismissal.
• Warnings about performance: for unsatisfactory performance, you warned the person before dismissing them.
• Size of the business: how the size of the business affected the procedures it followed.
• HR expertise: whether a lack of dedicated HR staff or expertise affected the procedures the business followed.
• Other matters: anything else the Commission considers relevant.

Smaller businesses get some allowance for having fewer resources, but they still need a fair process. Businesses with fewer than 15 employees should also check the Small Business Fair Dismissal Code.

In our experience, dismissals rarely go wrong because there was no reason. They go wrong because nobody can show the steps that led there. Someone raised the issue verbally months ago and nobody wrote it down. A leader gave a warning, but nobody can say exactly what they told the person. Different supervisors handled similar issues differently. The Commission’s decisions can turn on this kind of detail. In one 2025 decision, for example, the Commission noted there was no written material recording complaints about, or investigations into, the employee’s conduct.

A fair process, step by step

1. Raise the issue early, in plain language. Tell the person what you expect and where they’re falling short. You should resolve most issues here. Regular check-ins make this far easier.
2. Give support and time to improve. Be clear about what help is available and how long they have.
3. Warn clearly if it continues. Say what will happen if things don’t improve, and make sure the person understands.
4. Put the reasons to them before deciding. Share the specific concerns and give them a real opportunity to respond.
5. Allow a support person if asked. Don’t unreasonably refuse.
6. Consider their response properly. Then make your decision.
7. Look after the person throughout. A process can be firm and still humane. We cover this in how to run performance management without creating a psychosocial hazard.

What the record should show

For each step, capture:

• The date, who was present, and whether the person asked for a support person.
• What the issue is, in specific terms, and the standard you expect.
• The support you offered and the time you gave them to improve.
• Any warning, in the words you used, and what you told the person would happen next.
• The person’s response, in their words where possible.
• How you considered that response before making the decision.

Consistency matters as much as the record itself. If one supervisor documents everything and another handles it with a quiet word, you end up with patchy records and inconsistent outcomes. That’s a risk to the business, and it isn’t fair on workers either.

Where Note It fits

Note It gives every leader the same structure for performance conversations, from the first informal chat through to formal warnings. Leaders record each step as it happens, Note It tracks the actions, and the whole history sits in one place. When you need to make a decision, the record is already there.

If you want your performance process to be consistent across every leader, book a 20-minute demo.

This is general information, not legal advice. Eligibility rules, thresholds and time limits apply to unfair dismissal claims. Get advice for your specific situation.