Notification and the chance to respond
A valid reason isn’t enough on its own. The Commission also asks whether the person actually knew the real reason before the decision to dismiss them was made, and whether they had a genuine chance to change that decision.
What you’ll be able to do
- Explain why timing is the whole point of s.387(b) and (c): notification and the opportunity to respond both have to come before the decision to dismiss, not before the dismissal takes effect.
- Tell the difference between a process that lacks formality and a process that lacks substance.
- Spot a “show cause” process that was really just theatre, and build one that isn’t.
The legal test
Section 387(b) asks whether the person was notified of the valid reason for their dismissal. Section 387(c) asks whether they were given an opportunity to respond to it. Both questions turn on timing: notification and the opportunity to respond must happen before the employer actually decides to dismiss, not merely before the dismissal takes effect [2023] FWC 3059 at [58] [2023] FWC 3059 at [61].
The working principles
From the Full Bench in Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services [2020] FWCFB 6429, as quoted in [2024] FWC 1685 at [34] at [34]. Bartlett is not in this corpus as a direct record — check the quoted principles against the original before relying on them.
- Sections 387(b) and (c) must be taken into account as matters of significance, to the extent relevant, and given due weight.
- Section 387(b) requires a finding on whether the employee was notified of “that reason” — the reason found valid under s.387(a) — prior to the decision to dismiss being made.
- Section 387(c) requires a finding on whether the employee was given a real opportunity to respond to that reason. Logically, if they weren’t notified of the reason, they can’t have had an opportunity to respond to it.
- Findings under (b) and (c) are then weighed with the other s.387 matters — a key question is whether the failure deprived the employee of the possibility of a different outcome.
Notification is about substance, not timing alone. The “notified” reference is to explicitly putting the reason to the employee in plain and clear terms [2024] FWC 3017 at [37], and the inquiry under s.387(b) is whether that happened before the employer made the decision to terminate [2024] FWC 3017 at [37].
No formality required — but no vague generalities either
The opportunity to respond doesn’t need to follow any particular process. It’s applied in a practical, common-sense way to ensure the employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern and has a full opportunity to respond to it, that’s enough [2024] FWC 1685 at [32].
That cuts both ways for advisers. A business without an HR department doesn’t need a formal disciplinary policy to get this right — a direct, specific conversation can satisfy s.387(c). But a lengthy, formal-looking show cause letter that never actually tells the employee what they are alleged to have done fails the same test a silent dismissal does. The test is whether the employee knew the real substance of what was being put to them, not whether a document was issued.
The opportunity has to be real
An opportunity to respond “implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance.” An employer can go through the motions of giving an employee a chance to respond when, in substance, a firm decision to terminate has already been made and will be adhered to regardless of what the employee says. That does not constitute an opportunity to respond [2024] FWC 1685 at [31].
This is the trap advisers most often walk employers into: running a show cause process that looks procedurally correct on paper, while the real decision was made beforehand — in a meeting, an email chain, or simply in the decision-maker’s own mind.
What the Commission looks for in practice
- Sequence. When was the reason communicated, relative to when the decision-maker actually decided? Emails, diary notes and HR records that predate the “final” decision are the most common evidence of a pre-made decision.
- Specificity. Did the employee know the actual allegation — what they were said to have done, when, and based on what evidence — or only a category (“performance,” “conduct,” “breach of policy”)?
- Time to respond. Was the time given enough to actually turn their mind to a considered response, given the seriousness of what was alleged?
- Open-mindedness. Is there anything in the response that could realistically have changed the outcome, or was the process purely confirmatory? A standard-form show cause letter can still satisfy s.387(b) and (c) if it genuinely identifies the reason and gives a real chance to answer it — formality is not the test. In one matter, standard-form show cause letters issued to several employees, each notifying the specific reason and giving an adequate opportunity to respond, were found to satisfy s.387(b) and (c) even though they followed a common template [2022] FWC 1576 at [95].
How it fails
The real reason only surfaced after the dismissal
An employer dismissed a technician by letter, then raised additional reasons for the first time in its Form F3 response to his unfair dismissal claim — months later. [2024] FWC 1685 at [36] He was given no opportunity to respond to the termination letter at all [2024] FWC 1685 at [37].
If a reason wasn’t put to the employee before they were dismissed, it can’t retroactively justify the dismissal — however good it looks in hindsight.
Notified only by the dismissal letter itself
Two retail staff were dismissed when their employer decided to close the store. The only “notification” was the letter telling them they were dismissed — issued after the decision, not before it. [2024] FWC 3017 at [41] Neither was given a real opportunity to respond. [2024] FWC 3017 at [43]
Even a decision that makes good commercial sense has to be put to the employee before it’s made, not announced as a fait accompli.
“Going through the motions” of a show cause process
A show cause letter gave the employee under 24 hours to respond to four allegations; within days his IT access was cut, the office locks were changed, and he was told “you’ve got one week.” The Commission agreed the employer was going through the motions of an opportunity to respond when the decision to end his employment had, in substance, already been made. [2023] FWC 3059 at [73] That procedural failure weighed in the employee’s favour [2023] FWC 3059 at [91] — but the dismissal was ultimately found not unfair overall, because a genuine valid reason (dishonesty during the process) outweighed it. [2023] FWC 3059 at [90]
A real s.387(b)/(c) failure doesn’t automatically win the case — but don’t rely on that. The conduct here still had to be serious enough to carry the whole decision on its own.
Adviser checklist
Work through this before a show cause letter goes out, and again before the final decision is made.
- Before the letter goes out
- During the process
- Before deciding
- If something changes
Practice scenario: the site supervisor
Fictional scenario. Write your answers, then reveal the model answer.
This is a fictional scenario. Priya is a site supervisor with four years’ service at a mid-sized construction company. On Friday at 4:30pm, her regional manager hands her a letter alleging she failed to enforce a mandatory fall-protection procedure on site, and asks for a written response by 9:00am Monday, before a “show cause meeting” at 10:00am.
Priya works Saturday and Sunday on a rostered site and doesn’t see the letter again until Sunday night. Her written response on Monday morning says the procedure had been informally relaxed for two weeks across all three sites with the area manager’s knowledge, and that she’d raised this at a toolbox meeting the area manager attended. At the 10:00am meeting, the regional manager listens, thanks her, and says a decision will be communicated “shortly.” She is dismissed that afternoon.
- No — this looks like “going through the motions.” The labour-hire call and the email about Dale taking over, both sent before Priya had even read the letter, strongly suggest the regional manager had substantially decided to replace her before the show cause process began. That’s the same pattern as the air-conditioning technician case above: a process that looks correct on paper, run after the real decision.
- Not demonstrably. Priya had the letter for under two days, much of it spent working rostered shifts, before a meeting that took the form of a hearing rather than a discussion. Nothing in the facts shows the regional manager engaged with her central point — that the practice was known and condoned by the area manager — before deciding.
- Tell the regional manager: don’t make any resourcing decision (calling labour hire, briefing a replacement) until after the employee’s response has actually been read and tested. If Priya’s claim that the area manager knew about the relaxed practice is correct, that needs to be checked with the area manager before any decision is made — not treated as something to note and move past. If, after that check, there’s still a valid reason, the show cause letter and meeting need to happen again, properly, with an open mind.
Decisions cited
Check each paragraph reference against the published decision on the FWC website before relying on it. Crozier v Palazzo, Wadey v YMCA Canberra, Gibson v Bosmac, Bartlett v Ingleburn Bus Services and Sydney Trains v Trevor Cahill are cited as quoted in later decisions and still need checking in the original — none of them appear as a direct record in this corpus.
| Decision | Outcome (confirmed from the text) |
|---|---|
| [2024] FWC 3017 McDonald & Phelps v Northern Rivers 4WD | Both dismissals found unfair — confirmed at [52]. The applicants (employees of a 4WD parts and accessories retailer) were not notified of the valid reason for their dismissal (the closure of their store) prior to the dismissal taking effect, and were given no proper opportunity to respond — confirmed at [41], [43]. A small amount of compensation (24 hours' pay each) was ordered — confirmed at [61]. [52] |
| [2024] FWC 1685 Clyne v Surelinc Services | Dismissal found harsh, unjust and unreasonable — confirmed at [50]. The Commission found no valid reason for dismissal at [28], and separately that the alternate reasons the employer later relied on (raised for the first time in its Form F3 employer response) were not notified to the Applicant until after the dismissal, and that he was given no opportunity at all to respond to the termination letter — confirmed at [36]-[37]. Compensation of $27,707.66 was ordered — confirmed at [49], [51]. [50] |
| [2023] FWC 3059 Hickey v Mt Alexander Timber & Hardware | Dismissal found not harsh, unjust or unreasonable overall — confirmed at [90]. The Commission accepted the Applicant's submission that the employer was "going through the motions" of giving him an opportunity to respond during the show cause process when a decision to end his employment had, in substance, already been made — confirmed at [73], and that this procedural defect weighed in the Applicant's favour — confirmed at [91]. However, the Commission found this was outweighed by a valid reason (dishonesty during the show cause process) — confirmed at [90]-[91]. Illustrates that a genuine s.387(b)/(c) failure does not automatically make a dismissal unfair. [90] |
| [2022] FWC 1576 Kazantzis & Ors v Patrick Stevedores Holdings | All applications dismissed (not unfair) — confirmed at [103]. Among other findings, the Commission found that standard-form show cause letters issued to each applicant (stevedores, straddle operators and a senior clerk dismissed for failing to comply with a COVID-19 vaccination requirement) notified each of them of the proposed reason for dismissal and gave each of them an adequate opportunity to respond — confirmed at [95]. Used here only for that s.387(b)/(c) finding; the vaccination-mandate reasoning itself is not relied on. [103] |
- Crozier v Palazzo Corporation Pty Limited t/as Noble Storage and Transport (2000) 98 IR 137 — quoted in [2024] FWC 1685 at [30]. Check against the original before relying on it.
- Wadey v YMCA Canberra [1996] IRCA 568 — quoted in [2024] FWC 1685 at [31]. Check against the original before relying on it.
- Gibson v Bosmac Pty Ltd (1995) 60 IR 1 — quoted in [2024] FWC 1685 at [32]. Check against the original before relying on it.
- Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services [2020] FWCFB 6429 — quoted in [2024] FWC 1685 at [34]. Check against the original before relying on it.
- Sydney Trains v Trevor Cahill [2021] FWCFB 1137 — quoted in [2024] FWC 3017 at [37]. Check against the original before relying on it.