Unfair dismissal claim: managing communication during a Fair Work process

Losing your job is already stressful. Filing a Fair Work application on top of that creates a new layer of pressure: now every interaction with your former employer, their HR team, or their legal representative is potentially on the record. What you say, how you say it, and whether you can prove what was said to you all matter.

Most practical guides to unfair dismissal focus on the application itself: the strict lodgement deadline, who is eligible, the reasons for dismissal. Very few address the communication problem that runs alongside the whole process. You are not going to have zero contact with your former employer after a dismissal. There will be final pay queries, reference requests, equipment returns, and the Commission’s own conciliation process. The question is not whether you’ll communicate with them but how.

This guide is about that question: how to manage communication during a Fair Work claim in a way that protects you, builds a credible record, and keeps you out of the traps that catch a lot of people in an otherwise strong case.

This guide is about Australia’s Fair Work system. In the US, federal workplace harassment and discrimination charges are handled by the EEOC (eeoc.gov/harassment), and states have their own agencies too. Our guide to documenting workplace harassment in the US explains how to keep a record there.

Why communication during a claim is high-stakes

The Fair Work Commission is not a court, but it operates with a similar attention to conduct. How you and your former employer behaved before, during, and after the dismissal is relevant. Communications can be put before the Commission, and inconsistencies between what someone said informally and what they argued formally can be noticed.

There are two specific risks that make the post-dismissal communication period particularly important.

The first is the risk of an inadvertent admission. In the days and weeks after a dismissal, it is natural to want to explain yourself, defend your reputation, or simply get some closure. If that impulse leads to an email or text that could be read as accepting responsibility, acknowledging fault, or agreeing to an informal arrangement, it can be used against you. You don’t need to have intended it that way. The message is what it says.

The second is the risk of a missing record. People delete messages when they’re upset. They clear conversations that feel too painful to keep looking at. If those deleted messages later turn out to be relevant, the gap in the record is a problem. It raises questions about completeness and, in the worst cases, about whether the record was managed to present a particular picture. A full, automatic archive avoids those questions entirely. Our guide on documenting workplace harassment explains how to keep a reliable record.

How the Fair Work system treats conduct during disputes

The Fair Work system doesn’t set rules for how parties must communicate during a dispute, but how each side behaves can affect the outcome. A few things are worth understanding, and a lawyer or a free legal service can tell you how they apply to you.

General protections and adverse action

If your application is a general protections claim rather than an unfair dismissal claim, the conduct of both parties after the dismissal can be relevant. If your former employer continues to take action against you after you’ve lodged your application, that conduct may itself constitute adverse action. Documenting it matters.

Conciliation and conduct at the Commission

Before most Fair Work Commission matters proceed to a formal hearing, there is a conciliation conference. This is an informal, confidential process where a Commission staff member works with both parties to try to reach a resolution. Anything said in conciliation is generally not admissible in later proceedings, but communications outside conciliation remain on the record. It’s common for parties to become less guarded once conciliation has started. That’s a risk.

Costs and unreasonable conduct

The Commission has a general power to award costs where a party has acted unreasonably. Sending hostile, threatening, or erratic communications to your former employer during proceedings is the kind of conduct that can attract adverse comment and, in some cases, a costs order. Managing what goes out from you is as important as managing what comes in.

The types of communication that get people into trouble

These are the most common patterns. Each one is avoidable if you know to watch for it.

Responding emotionally to provocative messages

Former employers and their HR teams sometimes send communications that seem designed to provoke a reaction: messages that minimise your contribution, dispute your version of events, or imply you deserved what happened. Responding to those messages in kind, with anger, accusations, or threats, creates a record that works against you. The original message may have been inappropriate. Your response is what becomes the exhibit.

Informally agreeing to things

Settlement discussions happen in all kinds of places: in reply-all emails, in casual follow-up calls, in messages at the end of a long thread about something else. If you say something that sounds like acceptance of a settlement figure, waiver of an entitlement, or agreement to drop the matter, that message exists. The fact that you didn’t intend it as a formal settlement doesn’t necessarily prevent it from being characterised as one.

Deleting messages because they’re upsetting

This is probably the most common mistake. People delete hostile, threatening, or deeply upsetting messages because they don’t want to keep seeing them. That’s entirely understandable. The problem is that the deleted messages may be exactly the ones you need. A message from your former employer that contained threats, admissions, or false statements is valuable. Deleting it because it was distressing removes the evidence while keeping the damage.

Communicating across too many channels

If your former employer, their HR team, their solicitors, and various colleagues are all contacting you through different channels at once, it becomes very difficult to maintain a complete record. Things fall through. Context gets lost. Messages that arrived by SMS get separated from the email thread they relate to. A single, documented contact channel solves this.

How to create a documented, provable record of communications

A provable communication record has three qualities: it is complete, it is credibly preserved, and it is easy to produce.

Complete means that every communication from the relevant parties is captured. Not just the ones that support your position. The credibility of your record depends partly on its apparent completeness. A record that only contains messages that help you invites the obvious question about what else existed.

Credibly preserved means that the record was created and maintained in a way that is hard to challenge. The weakest form of evidence is a screenshot taken from a phone: it can be edited, it captures a moment rather than a thread, and it was selected by the person who took it. The strongest form is an automatic archive created by a system that captured every message as it arrived, before anyone had a reason to manage the record.

Easy to produce means that when your solicitor asks for the communications, or when the Commission asks for documentation, you can provide a structured export rather than a folder of disparate files. Format matters in formal proceedings. A PDF that presents the communications clearly, with timestamps, source information, and an explanation of how it was compiled, is more useful than the same information presented as loose screenshots.

Using a relay address so direct contact goes through a filtered record

The most practical solution to the communication management problem during a Fair Work claim is to give your former employer a single contact address that is not your real personal email or phone number. That address routes their communications through a system that filters and archives everything before it reaches you.

This solves several problems at once.

It creates a documented, automatic record of every communication from your former employer, without any manual selection or curation. Every message, including the hostile or distressing ones, is captured. You don’t have to choose to preserve them. The archive builds itself.

It means you don’t read every hostile message in full and immediately. AI filtering can identify language that is abusive, threatening or emotionally charged and take it out of the version you read. The original is still kept in your Archive, and you can read it when you’re ready. But it doesn’t arrive unannounced on a Sunday evening when you’re trying to put the process out of your mind for a few hours.

It keeps your real contact details out of the picture. During a dispute, giving your personal phone number or private email address as your main contact point creates ongoing exposure. A relay address is a documented contact point for the matter that doesn’t expose your real details.

That’s what a FenceChat address does. You create a @fencechat.com email address and give it to your former employer as your contact address for the matter. Their messages are processed by AI before they reach your inbox. Everything is archived in its original form, with timestamps. On the Legal plan, you can export the full archive as a PDF with timestamps and an attestation page describing how the records were captured.

What evidence Fair Work typically considers

The Fair Work Commission is less formal than a court, but it takes evidence seriously. In an unfair dismissal matter, the Commission typically considers:

• The reason for the dismissal and whether it was valid
• Whether the employee was notified of the reason and given an opportunity to respond
• Any warnings given before the dismissal
• The size of the business and whether it had HR support
• Communications before, during, and after the dismissal process
• Whether there was consistency in how the employer treated comparable situations
• The personal circumstances of the employee, including length of service and impact of the dismissal

Written communications are central to many of these considerations. The reason for dismissal is often set out in writing. The notification and response opportunity may have happened over email. Warnings are usually documented. The post-dismissal conduct of both parties, including how the employer has communicated since the application was lodged, can be relevant to credibility and to the Commission’s broader view of the employer’s conduct.

In general protections matters, the analysis of communications is even more detailed. The timing of the adverse action relative to the employee’s exercise of a workplace right is often critical, and that timing is established through the written record.

Practical communication guidelines for the claims process

These are the principles that tend to distinguish the people who navigate this process well from those who create avoidable problems for themselves.

Write as if everything will be read aloud at a hearing

This is the single most useful discipline. Before sending any message to your former employer, their HR team, or anyone connected with the matter, read it as if it will be quoted in a formal proceeding. If it reads as hostile, emotional, or concessive, revise it. Short, factual, and professional is almost always the right register.

Keep a single contact channel for the matter

Tell your former employer that all communication regarding the matter should go to one address. If they contact you through other channels, your response can simply direct them back to the designated address. Having a single channel makes the record much easier to manage and much harder to challenge.

Don’t delete anything

Even if a message is distressing, preserve it. If a message is threatening or abusive, preserve it. If a message seems irrelevant, preserve it. The time to decide what is relevant is not in the moment; it is when you and your solicitor are preparing for conciliation or a hearing.

Wait before responding

There is almost no message from a former employer during a Fair Work dispute that requires an immediate response. If a message provokes a strong emotional reaction, wait. Write a draft you don’t send. Return to it the next day. You will nearly always revise it.

Route anything important through your solicitor or representative

If your former employer or their solicitor is making any kind of offer, proposal, or request that has legal implications, many people take it to their solicitor or Fair Work representative before responding, because an informal email response to a settlement proposal can sometimes create obligations you didn’t intend to create.

Tell your support network what channel to use

Friends and family sometimes try to help by contacting your former employer on your behalf. This is almost always counterproductive. Make clear to the people around you that all contact in relation to the matter goes through you and through the designated channel.