When a dismissal that follows a workplace investigation is challenged, the Fair Work Commission must consider the matters in section 387 of the Fair Work Act, including whether there was a valid reason related to the employee’s capacity or conduct, whether the employee was told the reason, and whether they had an opportunity to respond. The Commission decides for itself whether the misconduct happened, so a weak investigation can turn a justified dismissal into an unfair one.

What does the Commission consider?

Section 387 requires the Commission to take into account:

whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
whether the person was notified of that reason
whether the person was given an opportunity to respond to any reason related to their capacity or conduct
any unreasonable refusal by the employer to allow a support person to be present to assist at discussions relating to dismissal
if the dismissal related to unsatisfactory performance, whether the person had been warned about it
the degree to which the size of the employer’s enterprise would be likely to affect the procedures followed
the degree to which the absence of dedicated human resource management specialists or expertise would be likely to affect the procedures followed
any other matters the Commission considers relevant.

A good investigation goes directly to (a), (b) and (c).

Is the employer’s belief enough?

No. In Hatch v WesTrac Pty Ltd [2020] FWC 5729, the Commission said that an employer’s reasonable belief that misconduct occurred is not enough; the misconduct must be proven on the evidence before the Commission. Applying the Briginshaw principle because the allegation was serious, the Commission was not satisfied that the employee intended to steal, and found the dismissal harsh, unjust and unreasonable. Flaws in the investigation were central to that outcome.

Who can make an unfair dismissal claim?

In general terms, according to the Fair Work Commission and Fair Work Ombudsman:

the application must be lodged within 21 days of the dismissal taking effect
the employee must have completed a minimum employment period: 6 months, or 12 months if the employer is a small business (fewer than 15 employees)
employees earning above the high income threshold must be covered by an award or enterprise agreement
small business employers who follow the Small Business Fair Dismissal Code, and can show it, may have the dismissal treated as fair.

The high income threshold changes each year; check the Fair Work Commission website for the current figure.

Do small employers get more leeway?

Section 387 lets the Commission take into account the size of the business and the absence of dedicated HR expertise when assessing the procedures followed. That is some allowance, not an exemption: a small employer still needs a valid reason and must still give the employee a chance to respond.

Lessons for employers

Put clear, specific allegations to the employee, with the evidence relied on.
Speak to all key witnesses and test inconsistencies.
Do not rely on untested statements for contested facts.
Put any adverse inferences or assumptions to the employee for a response.
Have the decision-maker read the report and evidence, not a second-hand summary.
Give the employee an opportunity to respond to the proposed outcome before deciding, and allow a support person.

How BION Partners can help

An independent investigation gives you findings that are more likely to withstand scrutiny. If your team investigates internally, we can advise on the process, and the BION Audit tests your procedures as a whole.

General information only. This page explains the law in general terms and is not legal advice. For advice about your situation, speak with a lawyer.

Sources

Checked 22 October 2026. Laws and guidance change; check the source before relying on it.

Investigation findings and unfair dismissal: what the Fair Work Commission looks at