Previous Page

Evidence - General protections dismissal

Information about evidence you should collect and prepare for Arbitration in your general protections case at the Fair Work Commission.

Evidence is information or an object that helps to prove or disprove a fact. For example:

  • a letter from an employer to an employee telling them they were dismissed could be used as evidence that the employee was sacked
  • a pay slip could be evidence of an employee's wages
  • an employee's statement about what happened at a meeting would be evidence that the meeting occurred and what it was about.

Evidence can be:

  • documents such as emails, text messages, letters and recordings, or
  • testimony (verbal or written statements) of a witness (witness statement).

You will need to gather the evidence that supports what you are saying about your case. Your evidence needs to answer the questions the Fair Work Commission (the Commission) will ask about your case, including: 
 
1. Are you able to make a general protections dismissal application? You might need evidence that:

  • you applied within the time limit (that is within 21 calendar days of the dismissal taking effect)
  • you were a national system employee (that is, protected by the Fair Work Act).

2. Were you dismissed in breach of a general protection? You might need evidence that could show you:

  • were dismissed
  • were discriminated against
  • exercised a workplace right
  • were away from work because of illness.

3. If your dismissal was in breach of a general protection, what orders should be made? You might need evidence that could show:

  • what loss you have suffered (for example, the difference between your pay for your old job and your new job, if you have one)
  • what efforts you have taken to find another job
  • if you want to be reinstated, that the relationship between you and your employer hasn’t suffered too much damage.

For more information, see:

You should get legal advice about what evidence you will need to prove your case.

Think about what documents you have to support your case. These might be:

  • your employment contract
  • a copy of the award or any enterprise agreement that covers you
  • any relevant policies, procedures or manuals that are used in your workplace
  • any statement of duties or other document that sets out what things you do at your work
  • letters or emails or texts between you and your employer
  • reports of performance review meetings
  • your termination notice or letter.

Make sure you have at least four copies of these documents (one for the Commission member, one for the employer, one for you to keep and another to show any witnesses if you want to ask them about the document).

Any account by a witness should go in a witness statement. You will need a witness statement for yourself and every one of your witnesses. Your witnesses might be:

  • co-workers
  • supervisors
  • any support person who was with you at meetings with your employer (for example a family member or a union representative).

Include the important information about your employment in your witness statement:

  • when you signed your contract
  • when you started work and the position you started in
  • the date of any promotion and the name of your new position
  • details of any change of duties
  • details of any performance meetings or meetings about complaints
  • details of any complaints you made to your employer or staff of your employer
  • details of any sick leave you took, or any discrimination you experienced
  • when you were told you were dismissed, and what you were told about why you were being dismissed
  • the date of your last day of work.

For more information on how to write a witness statement, see  How to write a witness statement in the Arbitration topic.

If there are documents that you need but do not have (for example workplace policies or emails), it is possible to ask the Commission to order that your employer or someone else produce those documents for you to view.

You will need one form:

  • Form F52 - Order Requiring Production of Documents etc. to the Fair Work Commission 

You can get copies of the form from the Fair Work Commission website.

In the form you will need to explain what documents you want. 
 
You should attach a cover letter:

  • explaining what documents you are asking for and
  • your reasons for why you want the order.

If the Commission decides to make the order, you will be sent a signed and sealed copy of the order.

You must serve the order on (give it to) the person who the order is addressed to (usually the employer).

For an example of this form, see ;

Sample: Sample Order Requiring Production of Documents.

If you want someone to come to arbitration at the Commission and give evidence and they will not agree to come, it is possible to ask the Commission to order them to attend.

You will need one form:

  • Form F51 - Order Requiring a Person to Attend the Fair Work Commission

You can get copies of the form from the Fair Work Commission website. 

You should attach a cover letter explaining your reasons for why you want the order.

If the Commission decides to make the order, you will be sent a signed and sealed copy of the order.

You must serve the order on the person who the order is addressed to.