For employers
Show cause letters and dismissal: running a process the Commission will accept
Dismissing someone is lawful when there is a valid reason and a fair process. The process is where most employers lose, not the reason. A show cause letter, a meeting where the employee can actually respond, and a decision made afterwards rather than before is the shape of it. This page sets out that shape, the shortcuts that fail, the different rules for employers with fewer than fifteen staff, and the points where an hour of advice is cheaper than a claim.
Updated . General information, not legal advice.
Time limits that apply
| What | Limit | Source |
|---|---|---|
| Employee's window to claim after dismissal | 21 days for unfair dismissal or general protections | Fair Work Act ss 394(2), 366 |
| Small business employer | Fewer than 15 employees by head count, including regular casuals; the Small Business Fair Dismissal Code then applies | Fair Work Act s 23 |
Do you need a lawyer for this?
Advice usually pays for itself when
- The employee is senior, long-serving or well paid, and the potential compensation is near the $95,050 cap or, in a general protections claim, uncapped.
- The dismissal reason is misconduct you cannot fully prove, or capacity related to illness or injury, where extra protections apply.
- The employee has recently complained, taken leave, raised a safety issue or announced a pregnancy, which turns any dismissal into a likely general protections claim.
- There is no written record of previous warnings and you want to know whether the process can be repaired before acting.
The free route is usually enough when
- A documented performance process with prior warnings, a clear show cause letter, and a response meeting, for an employee with modest exposure.
- A small business employer following the Small Business Fair Dismissal Code step by step, with the checklist completed.
What does the Commission check in a dismissal?
Whether there was a valid reason connected to the employee's capacity or conduct. Whether the employee was told that reason. Whether they were given an opportunity to respond to it. Whether a support person was unreasonably refused. Whether, for a performance dismissal, they had been warned about the performance before being dismissed for it. And whether the size of the business and its lack of HR expertise affected the process. A dismissal can be unfair even where the reason was valid, if the process was not, and it can be harsh even where the process was fine, if dismissal was out of proportion to the conduct. Both halves matter.
What is a show cause letter and what should it say?
A show cause letter tells the employee, in writing, what the concern is, what evidence supports it, that dismissal is a possible outcome, and that they are invited to respond by a set date or at a meeting where they may bring a support person. It should be specific: dates, incidents, the policy or standard breached. It should not announce the decision. Its purpose is to give the employee a genuine chance to answer, and to create the record that they had one. A letter that says the decision has been made and asks for reasons why it should not be is a termination letter with extra steps, and the Commission reads it that way.
What about warnings and performance management?
For a dismissal based on unsatisfactory performance, the Act expects the employee to have been warned and given a chance to improve. A warning should say what the problem is, what improvement is expected, by when, and that failure to improve may lead to dismissal. Written is better than verbal because it can be proved. One warning may be enough for a serious or repeated issue; more are expected for gradual problems. Performance improvement plans are not required by law but they do the job well when they set measurable targets and are reviewed honestly. A dismissal for performance with no prior warning on file is one of the most common unfair dismissal findings.
How is a small business different?
An employer with fewer than fifteen employees can rely on the Small Business Fair Dismissal Code. For serious misconduct, the Code allows dismissal without notice or warning where the employer had reasonable grounds to believe the conduct occurred, after making reasonable enquiries. For other dismissals it expects a warning that dismissal is a risk, a reasonable chance to improve, and an opportunity for the employee to respond with a support person present. If the Commission is satisfied the Code was followed, the dismissal is not unfair. The Code is a short document and following it is not onerous. Employers who assume small size alone protects them are the ones who lose.
When does a lawyer pay for itself?
Before the show cause letter goes out on a high-exposure dismissal, because the letter and the process are what will be examined, and they are cheap to get right and impossible to redo. Whenever the employee has recently exercised a workplace right, because the dismissal will be tested under the reverse onus. Where the reason is capacity linked to illness or injury, because specific protections apply. And where notice, restraints, a deed or a reference are being negotiated as part of the exit. Liquid Employment Lawyers is FairWork Mate's paid legal partner for employers. It is an Australian employment law firm, not free government help, and it explains scope and fees before any work. For a routine, documented performance dismissal, the free tools set out the process.
What is the free route for employers?
The Fair Work Ombudsman on 13 13 94 explains notice, final pay and the dismissal rules to employers at no cost, and its site sets out the Small Business Fair Dismissal Code. FairWork Mate's notice period and final pay calculators give the numbers, the can-I-be-fired checker shows the employee's view of the same facts, and the employer speaking notes tool helps with the meeting. Free general information, not legal advice. FairWork Mate is not affiliated with the Fair Work Commission or the Ombudsman.
Free FairWork Mate tools for this
Talk to Liquid Employment Lawyers about this
Share a few details and their team will be in touch to talk it through. No obligation, and you decide whether to go further after that first conversation.
Liquid Employment Lawyers is an Australian employment law firm and FairWork Mate's paid referral partner, not free Fair Work advice. They discuss scope and any fees with you directly. FairWork Mate is not affiliated with the Fair Work Commission or the Fair Work Ombudsman. For free general guidance, use the tools above or call the Fair Work Ombudsman on 13 13 94.
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Common questions
How much notice do we have to give?
At least the National Employment Standards minimum, which rises with length of service, plus an extra week for employees over 45 with at least two years' service, unless the contract or award gives more. Notice is not owed for serious misconduct. Payment in lieu is allowed.
Can we dismiss by email or text?
You can, and it is a bad idea. The Commission has criticised dismissals delivered without a meeting, and the method feeds into whether the dismissal was harsh. A meeting with a support person, followed by a letter, is the safe pattern.
The employee refused to attend the show cause meeting. What now?
Offer a second time in writing, invite a written response instead, and record the refusals. A genuine opportunity that the employee declines is still an opportunity. Then decide on the material you have.
Is Liquid Employment Lawyers free?
No. It is an Australian employment law firm and FairWork Mate's paid referral partner. Enquiring is free and there is no obligation. The Fair Work Ombudsman on 13 13 94 gives free information to employers.
Does a probationary employee need a process?
Inside the minimum employment period the employee cannot claim unfair dismissal, but general protections and the notice and final pay rules still apply. A short, honest process is still the safer course, and a dismissal for a prohibited reason is unlawful at any stage.
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General information and estimates only — not legal, financial or tax advice. Always check your specific award, agreement or contract, or a qualified professional, before you rely on the result.
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