Escalation
Most of this course is about getting a dismissal right on your own. This module is about knowing when you shouldn’t — and getting a senior ER adviser or Legal involved before the facts, the file or the timeline are set in stone.
What you’ll be able to do
- Recognise the fact patterns that mean a file should move to a senior ER adviser, and the smaller set that mean it should move to Legal.
- Tell the difference between risk that needs a second pair of experienced eyes and risk that needs a lawyer’s advice.
- Know what to hand over when you escalate, and what not to do to the file while you wait for an answer.
When to escalate to a senior ER adviser
These triggers don’t necessarily need a lawyer yet, but they’re beyond what an adviser should decide alone.
The facts are genuinely contested. There’s a real difference between disputing what a set of agreed facts means — is this conduct serious enough to justify dismissal — and disputing whether the facts happened at all. Where there’s a genuine credibility dispute or conflicting first-hand accounts, the Commission doesn’t accept an employer’s honest belief after investigation; it decides for itself, on the balance of probabilities, whether the conduct actually occurred [2021] FWC 13 at [88]. If you can’t yet say, on the evidence in front of you, whose account is more likely true, that’s a sign the matter needs a more experienced read before anyone commits to a version of events in writing.
Long service, seniority, or a disproportionate personal impact. These don’t affect whether there’s a valid reason — that question is about the conduct or capacity alone. But they can still decide the outcome once the Commission turns to the mitigating factors in s.387(h), and a case that looks sound on valid reason can still be lost there. A university lecturer dismissed for underperformance was found to have been treated harshly once the Commission weighed her over 14 years of otherwise unblemished service against the career damage of the dismissal and her caring responsibilities [2020] FWC 416 at [119] — Module 9 covers this ground in full. The adviser-level task is simpler: flag it early. A long-serving or senior employee, or one for whom dismissal would be unusually severe, is a case where the mitigating-factor analysis needs to be done properly before a recommendation goes up, not bolted on afterwards.
Reputational, media or multi-employee risk. Some matters are ordinary on the facts but carry risk because of what they represent rather than what they are: a decision that will set the pattern for how several similar cases get handled, a matter likely to attract public or union attention, or one involving a manager, public figure or safety-sensitive role. This is a judgment call about exposure, not a legal test — but it’s exactly the kind of exposure an individual adviser shouldn’t be carrying alone. If in doubt about whether a matter is “big enough” to raise, raise it; the cost of a wasted five-minute conversation is far lower than the cost of a precedent nobody meant to set.
When to escalate to Legal
These triggers carry a materially different kind of legal risk, not just a harder judgment call.
The employee has a lawyer or paid agent, or a union is actively involved. A lawyer or paid agent doesn’t get to represent a party in a matter before the Commission as of right — the Commission has to be satisfied the statutory conditions are met before granting permission. In one matter, a Commissioner recorded that permission was only granted to the respondent’s lawyer after being “satisfied that the requirements of s.596(2)(a) of the FW Act were met”; the unrepresented applicant had no equivalent permission to seek [2020] FWC 2 at [6]. The mechanics of s.596 aren’t the main point for an adviser — the main point is that once the other side has engaged a lawyer, paid agent or union official, the matter is being run as a legal dispute by someone trained to run one, and your own side needs the same calibre of input before the next letter goes out.
There’s a plausible general protections angle. If the person has recently made a complaint, exercised a workplace right, has a protected attribute, or has been involved in industrial activity, treat the risk profile as materially different from an ordinary unfair dismissal — not because the dismissal is necessarily wrong, but because of how the law allocates the burden of proof. Once an employee establishes the protected right or attribute and that adverse action was taken, it is presumed the action was taken for that reason unless the employer proves otherwise [2024] FWC 2475 at [41] — Module 2 covers the reverse onus in full. That presumption means the employer carries the burden of proving a negative, through the actual decision-maker’s own evidence, not through an HR summary. A case that would be a straightforward, low-risk unfair dismissal without the complaint or attribute in the picture is a different and higher-stakes matter with it.
Novel or unclear legal questions. Some matters don’t fit the patterns you’ve learned to recognise — a genuinely uncertain jurisdictional question, a fact pattern that sits between two lines of authority, or a provision you haven’t had to apply before. Don’t try to reason your way to a first-principles answer under time pressure. That’s exactly what Legal is for, and it’s a much cheaper conversation before a decision than after one.
Vulnerable employees. Disability, psychiatric injury, recent parental leave, and visa-dependent employment all share a feature: getting the dismissal wrong doesn’t just risk an unfair dismissal remedy, it can tip the matter into an entirely different kind of claim. Where a dismissal follows closely on a disability disclosure, the risk is squarely the general protections and reverse-onus territory above — and the bar for the employer’s evidence is high. In one matter, the suggestion that two decision-makers had really dismissed an employee because she was neurodivergent was only defeated because those decision-makers gave detailed, specific, first-hand evidence of the real operational and conduct reasons; the Commission found the alternative explanation “lacks any basis, and was understandably considered offensive” only on the strength of that evidence [2024] FWC 2475 at [47]. A psychiatric injury, a recent period of parental leave, or a visa condition tied to the employment raises the same structural problem even where the specific legal label differs: the usual unfair dismissal analysis is no longer the only — or even the main — exposure in the room.
What NOT to do while waiting for advice
Escalating only works if the file is still open when the advice comes back.
- Don’t finalise or send the letter. A draft can wait a day. A sent termination letter can’t be unsent.
- Don’t tell the employee, their manager, or anyone else that a decision has been made. “We’re still working through the process” is true and safe. “You’re being let go” is neither, if it turns out to be premature.
- Don’t let a diarised termination date drive the timeline. If the date arrives before the advice does, move the date. A planned date is a scheduling convenience, not a legal deadline, and it is never a reason to skip advice on a matter serious enough to escalate in the first place.
- Don’t put further allegations to the employee, or conduct further interviews, without checking in first — especially where the facts are contested. A question asked the wrong way can itself become part of the problem.
- Don’t edit, delete or “tidy up” file notes, emails or investigation material. Preserve what exists as it exists.
- Don’t let the file go cold either. Waiting for advice isn’t a reason to stop gathering and preserving contemporaneous evidence — keep collecting while you wait, so the adviser or lawyer isn’t starting from a cold trail two weeks later.
When escalation is skipped or delayed
No one from the business could explain the real reason
A redundancy followed an employee’s workplace complaint and disclosure of a pre-existing medical condition. By the time the matter reached the Commission, the actual decision-maker gave no evidence at all, and the business had nothing to put up but an unsupported account from someone else. [2025] FWC 777 at [26]
If a general protections angle is visible at the time of the decision, that’s when to get the decision-maker’s evidence prepared and preserved — not after the application lands.
Specific, early evidence survived a serious suggestion
A dismissal that followed a disability disclosure survived only because two decision-makers had detailed, consistent, first-hand evidence of the real reasons ready to give. [2024] FWC 2475 at [47]
The difference between these two outcomes isn’t the strength of the underlying case — it’s whether the evidence existed and was ready when it mattered.
A rushed timeline forecloses the options advice would have opened up
Once a letter is sent or a date has passed, Legal is often left advising on damage control rather than on the decision itself — extending a timeline, pausing a process, or reframing an allegation are all easier before a decision is communicated than after.
Escalating early preserves options. Escalating after the letter is sent mostly preserves regret.
Adviser checklist
- Representation and third parties
- Facts and evidence
- General protections risk
- Proportionality and mitigating factors
- Novel or unclear law
- Reputational and systemic risk
- Vulnerable employees
- While you wait
- The handover
Practice scenario: the Northgate Logistics dispute
Fictional scenario. Write your answers, then reveal the model answer.
Fictional scenario. Northgate Logistics is a mid-size freight and warehousing company. Deo has worked there for nine years as a shift supervisor, most recently overseeing a team of twelve. Six weeks ago, Deo lodged a written complaint about a forklift near-miss and asked his manager, in the same email, for lighter duties after returning from eight weeks of workers’ compensation leave for a psychiatric injury arising from an earlier incident at the site.
Deo says he filled in the loading log from memory after a system outage, then corrected it the next morning once the system came back — and that another supervisor does the same thing routinely. The area manager says it doesn’t matter why; falsifying a safety record is “a sackable offence, full stop,” and wants the Friday meeting to go ahead as planned so it lines up with the existing review date on the roster.
- Multiple triggers are stacked here. A union delegate is now actively involved — that alone means Legal input before anything further is put to Deo in writing. There’s a plausible general protections angle: a safety complaint and a disclosure of a psychiatric injury, followed within weeks by an allegation and a push to terminate, is exactly the timing pattern that engages the reverse onus. The facts are genuinely contested — Deo’s account of a system outage and a same-morning correction, and his claim that another supervisor does the same thing, haven’t been tested at all. And Deo has nine years’ service in a supervisory role, which is a live s.387(h) consideration if a valid reason is otherwise made out. This is not a one-trigger case; it should go to Legal, with senior ER also looped in on the mitigating-factors and consistency questions.
- The termination date should move. “It lines up with the roster” is a scheduling convenience, not a reason to finalise a dismissal before the contested facts are tested and before Legal has looked at the general protections exposure. The Friday meeting should be deferred, and Deo should be told only that the process is continuing — not that a decision has been made.
- A complete handover to Legal includes: the full timeline from the near-miss complaint through to the proposed termination date, with dates; the workers’ compensation and psychiatric injury history; the loading log allegation as actually put to Deo and his response, including the claim that another supervisor does the same thing (checked or not yet checked); confirmation of the union delegate’s involvement and any correspondence from them; Deo’s length of service and role seniority; and an honest statement of what hasn’t yet been verified — particularly whether the “another supervisor does the same thing” claim holds up, and whether the system outage is independently confirmed.
Where it could land, depending on what the further inquiries show:
Decisions cited
Check each paragraph reference against the published decision before relying on it. Three of these citations are reused, independently re-verified, from Module 2 and Module 9’s territory, cited here for a different purpose — illustrating when and why a matter should move up the chain, not restating the full legal test. Rows marked “partial” confirm the proposition pinpoint only.
| Decision | Outcome (confirmed from the text) |
|---|---|
| [2025] FWC 777 Gray v Rim Fire Asia Pacific Pty Ltd | The Commission found the adverse action (dismissal) was taken for protected reasons — confirmed at [31]: the applicant's workplace complaint about a co-worker (s.341(1)(c)(ii)) and his disclosure of a pre-existing medical condition (s.351). The respondent's actual decision-maker did not give evidence or a witness statement; the witness who did appear gave only unsupported verbal submissions about a redundancy rationale, which the Commission found did not discharge the s.361 reverse onus — confirmed at [26]-[30]. Remedy was left to a further directions process, confirmed at [32] — the remedy itself was not read in this pass. [31] |
| [2024] FWC 2475 Hastings v Platform To Pty Ltd | Application dismissed — confirmed at [50]. The applicant alleged dismissal because she exercised a workplace right (s.340) and because of her disability, Autism Spectrum Disorder (s.351). Adverse action (dismissal) was not disputed at [40]. The two decision-makers gave specific, consistent, first-hand evidence of the actual operational and conduct-based reasons for the dismissal, which the Commission accepted discharged the s.361 reverse onus — confirmed at [43], [47]-[49]. [50] |
| [2021] FWC 13 Hijazi v Calvary Health Care ACT | Valid reason found related to conduct — confirmed at [91]. The finding relied on the employee's own concessions, with limited reliance on the investigation report — confirmed at [92]. [91] |
| [2020] FWC 416 Zhao v University of Technology Sydney | Dismissal found 'harsh and unreasonable' — confirmed at [120]. The 'harsh' finding rested on s.387(h) mitigating factors: 14 years of otherwise unblemished service, the career damage of a performance dismissal, very limited alternative employment prospects, and sole caring responsibility for elderly parents plus a mortgage — confirmed at [119]. Reinstatement, continuity of service and lost remuneration ordered — confirmed at [136]-[137]. Permission to appeal was later refused by a Full Bench majority (see [2020] FWCFB 3571), so these orders stood. [120] |
| [2020] FWC 2 Salisbury v Sigmatek Pty Ltd | Application dismissed under s.587(1)(c) for want of reasonable prospects of success — confirmed at [36]: the applicant had signed a Deed of Release on redundancy, the Commission found no duress in the signing, and the Deed barred the unfair dismissal claim. Cited here for [6], where the Commission records that it granted the respondent's lawyer permission to appear only after being satisfied the requirements of s.596(2)(a) of the FW Act were met; the unrepresented applicant had no equivalent permission to seek. Used to illustrate that legal or paid-agent representation in a Commission matter is not automatic, and that its presence on the other side is itself an escalation trigger. [36] |
- Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 — quoted in [2024] FWC 2475 at [42]. Check against the original before relying on it.
- Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 — quoted in [2024] FWC 2475 at [42]. Check against the original before relying on it.
- Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 — quoted in [2024] FWC 2475 at [42]. Check against the original before relying on it.
- Jones v Dunkel (1959) 101 CLR 290 — quoted in [2025] FWC 777 at [21]. Check against the original before relying on it.
- Colson v Barwon Health [2014] FWCFB 1949 — quoted in [2020] FWC 416 at [123]. Check against the original before relying on it.
- Nguyen and Le v Vietnamese Community in Australia [2014] FWCFB 7198 — quoted in [2020] FWC 416 at [124]. Check against the original before relying on it.
- Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 — quoted in [2020] FWC 416 at [124]. Check against the original before relying on it.
- Regional Express Holdings Limited t/a REX Airlines v Richards [2010] FWAFB 8753 — quoted in [2020] FWC 416 at [126]. Check against the original before relying on it.