Avoiding Unfair Dismissal Claims in Queensland

5 Practical, High-Level Tips for Employers

Unfair dismissal applications make up around 37% of cases at the Fair Work Commission, with approximately 16,500 lodged nationally in 2024–25 alone—thousands involving QLD businesses. Many could have been avoided through early intervention and a robust, fair process. Getting it right saves serious time, money, and stress.

In Queensland (and across Australia), the scenarios are all too common: ongoing underperformance dragging down the team, repeated policy breaches, inappropriate behaviour or dishonesty, or patterns of unplanned absences. What starts as frustration soon affects productivity, morale, and workload for others.

You decide you need to act—but mishandling it (no warnings, rushed decisions, or skipping a genuine chance to respond) can lead to an unfair dismissal application. The FWC assesses whether dismissals are harsh, unjust, or unreasonable under the Fair Work Act. Procedural flaws often tip the balance against employers—even when there's a valid reason for dismissal.

Real QLD examples highlight the risks:

• In Weule v Central Queensland Services Pty Ltd [2025] FWC 1219 (a QLD mining services case), an employee was reinstated after a workplace altercation. The employer was found to have failed to properly investigate the incident and follow a full, unbiased process.
  

• In other recent decisions, dismissals for misconduct (such as using work resources inappropriately while job-hunting) have been ruled harsh or unreasonable where the employer didn't provide balanced consideration or a proportionate response.
  

• Performance-based dismissals have frequently been overturned when employers skip documented warnings, fair investigations, or opportunities to improve.

The good news? You don't have to navigate this alone or risk costly mistakes. Just as you wouldn't rewire your house if you're not a qualified electrician, attempting complex disciplinary or termination processes without specialist input can lead to avoidable problems.

Here are 5 practical tips (which don’t take up hours of your time) to manage performance, conduct, and disciplinary issues early and keep your business on the right side of the law should a termination be necessary:

Tip 1 – Document issues early

Start noting specific, dated examples as soon as concerns arise (e.g., "missed a critical project deadline on 15 Jan 2026, causing a 3-day team delay" or "raised voice aggressively in team meeting on 10 Feb 2026"). Actual examples move you beyond generalities, help the employee understand the problem and its impact, and demonstrate reasonableness if matters escalate. Poor record-keeping is a common weakness in FWC cases—good, factual notes provide strong protection.

Tip 2 – Start with an informal conversation

Too often, concerns build while we hope things will improve on their own (they usually don't). Arrange a private one-on-one chat and frame it supportively: "I've noticed [specific issue] happening a few times lately—is everything okay? Is there anything we can do to help?" Listen actively without interrupting. Remember the important saying: “We learn nothing when we are talking.” The issue might stem from personal challenges, team dynamics, lack of motivation, or unclear expectations. After listening, explain your perspective, what needs to change, and how you'll support getting there. Take brief, factual notes afterwards (key points discussed, any agreements or support offered). These records prove procedural fairness if reviewed by the FWC.

Tip 3 – Provide clear, formal feedback and set expectations

If the informal chat doesn't resolve things, move to a more structured meeting. Clearly outline the issue(s), the impact on the business/team, and the required standards.

• For performance: Be specific about what you want them to do, set measurable goals, and realistic timelines for improvement.

• For conduct: Be clear about what behaviour must stop and what positive actions are expected (reference your Code of Conduct if you have one). Be direct in content (not tone) to avoid the "no one ever told me" defence.

Important: For formal meetings, follow key procedural steps—notify in advance, allow a support person if requested, and give time to respond. Document the meeting briefly afterwards. These steps show procedural fairness. If you're unsure about structuring this, now is the time to seek advice—not after.

Tip 4 – Issue warnings

Written warnings are a serious step but often necessary for ongoing issues. Only issue them after fair consideration of all facts. A well-documented warning (detailing the breach, prior discussions, expected improvements, and consequences) shows the FWC you acted reasonably and the employee was on notice. If you're new to this process, get specialist input before proceeding—just like consulting an expert before tackling a major job yourself.

Tip 5 – Termination of employment

If earlier steps fail or the matter is serious (e.g., gross misconduct), termination may be unavoidable. You will need:

• A valid reason;

• Procedural fairness (documented steps, genuine opportunity to respond, due consideration);

• Careful assessment of the circumstances.

In QLD cases, even small process slips (e.g. inadequate response time) have led to reinstatement or compensation orders. Always run a potential termination past an HR expert to identify and mitigate risks.

Keep this in mind as you go: Employees deserve fair and reasonable treatment, and you deserve a productive, safe workplace. The balance comes from acting early, consistently, and fairly, rather than letting issues fester and ending up at the FWC.

If performance is slipping, conduct issues are brewing, or you're unsure how to handle a situation without risking FWC claims, reach out to us at We Are HR for help. We're Brisbane-based and specialise in helping local Queensland businesses manage these matters practically and safely.

General Information Only The content on this website provides general tips and information about HR topics and is for informational purposes only. It is not legal advice, or tailored to your specific workplace, contract, award, agreement, or circumstances. Employment laws and obligations under the Fair Work Act can vary.

We do not guarantee the information is complete, accurate, current, or suitable for your needs. Do not rely on it as a substitute for independent professional advice or the Fair Work Ombudsman (www.fairwork.gov.au). We Are HR and its representatives disclaim all liability (to the extent permitted by law) for any loss or damage arising from use of or reliance on this information.