What evidence will you need?
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 apply for unfair dismissal?
Evidence on this might show:
- that you applied within the time limit
- that you were an employee
- that you did not earn too much.
2. Were you unfairly dismissed?
Evidence on this might show:
- that you were dismissed
- that the dismissal was unfair
3. If you were unfairly dismissed, what orders should be made?
Evidence on this might show:
- what compensation you want and how you have worked out the amount you are asking for
- if you want to be reinstated to your position (get your job back).
If you haven't already, read:
- Can you apply?
- What is unfair dismissal?
- Checklist - Making an unfair dismissal application [PDF, 40KB]
You should get legal advice about what evidence you will need to prove your case.
What documents will you need?
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).
What form should a statement be in?
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
- the support person who was with you at meetings with your employer (for example a family member or a union representative).
For more information on how to write a witness statement, see How to write a witness statement, below.
What can you put in your statement?
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
- 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.
How can you get documents you don't have?
If there are documents that you need but do not have (for example 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 forms from:
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:
How can you get someone to attend the Fair Work Commission to give evidence?
If you want someone to come to the hearing 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 forms from:
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.
How to write a witness statement
What is a witness statement?
A witness statement is a document that sets out what a witness says about your case.
If you want to bring a witness to a hearing, you must file and serve (formally give the other side) a witness statement made by them by the deadline in the directions made by the Fair Work Commission (the Commission). If you do not file and serve a witness statement in time, the Commission might not let that witness give evidence at your hearing.
You will need to prepare a witness statement for yourself and get one from each of your other witnesses.
Is there a form to use?
There is no standard form for a witness statement, but it should:
- be on one side of A4 paper and be typed or neatly handwritten.
- start with the full name, address and occupation of the person making the statement.
For example:
| I, Umberto D'Avanzo of 58 Sample Street, Parramatta NSW 2148, computer technician state: |
- have numbered paragraphs. Try and put one fact or idea in each paragraph.
- be signed on the last page by the person making the statement with the date next to their signature.
What should be in a witness statement
Only include what you know
The statement should only include things that the person making the statement saw or heard or did. Don't include rumours or gossip.
You will need to prepare a witness statement for yourself and get one from each of your other witnesses.
Include the important information about your employment in your witness statement
In your statement, include all the important information about your employment like:
- 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
- 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.
Include dates or date ranges
If you want to refer to a date but you are not sure when something happened, you can give a date range or say "on or about" a date.
For example:
| 1. On a date between 1 April and 15 April 2011, I was told by Ms Merger that there was a complaint from the client about the standard of my work. |
| 2. I had a meeting with Wanda Merger, Human Resources Manager on or about 15 April 2011. |
Write down what people said
If you want to write down what someone said to you or things you said to someone else, you should put what was said in quotation marks.
For example:
| 3. I said to Ms Merger, "What is this complaint about?" Ms Merger said, "I will give you a copy of the complaint" |
If you cannot remember exactly what was said but you remember the gist of the words you can say:
| 4. I said to Ms Merger words to the effect of, "This complaint is rubbish". |
Attaching documents
When you talk about a document in a witness statement you should attach a copy of that document to the end of the statement.
These documents are then called 'attachments'. You should label the top of the first page of each attachment with a letter. The first page of the first attachment would be labelled "A". The first page of the second attachment would be labelled "B".
In your statement you can refer to this document like this:
| 5. On 15 February 2012, I received an email from Ms Merger, the Human Resources Manager at Left Right Out Industries Pty Ltd. This email said that I was not to come into work the next day. Attached and marked "A" is a copy of that email. |
More help
When you have prepared your witness statements, you should file and serve them. For information on how to file and serve a witness statement, see Step by step guide - Preparing for the hearing.
For more information about preparing legal documents and writing statements, see Reading and writing legal documents.
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