See Fair Work Act s.387(c)
An employee must be notified of the reason for termination and must also be given an opportunity to respond to that reason before the decision to terminate is made.
This process does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly.
'Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of this section.'
For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal, there needs to be a finding that there is a valid reason for dismissal.
In Wadey v YMCA Canberra Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:
[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.
 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at para. 75, [(2000) 98 IR 137].
 ibid., 14‒15.
 Chubb Security Australia Pty Ltd v Thomas, Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at para. 41.
  IRCA 568; cited in Dover-Ray v Real Insurance Pty Ltd  FWA 8544 (Thatcher C, 5 November 2010) at para. 85, [(2010) 204 IR 399].