Unfair dismissal in Australia – how it works
Under the Fair Work Act, the Fair Work Commission (FWC) can find a dismissal “unfair” if it was harsh, unjust or unreasonable. The Commission considers the reason for dismissal, whether there was a valid reason related to conduct or capacity, whether the employee was notified and given a chance to respond, and other fairness factors. The main remedies are reinstatement and, if that isn’t appropriate, compensation (capped).
Most matters start with an F2 application to the FWC within 21 days of dismissal taking effect, followed by a phone conciliation. Many disputes settle at conciliation through a deed of release that can include a separation payment, reference/statement of service and agreed confidentiality.
Important: This guide provides general information only, not legal advice. Eligibility, deadlines and options depend on your exact employment status, coverage by an award or enterprise agreement, pay level and the facts of the dismissal.
Eligibility checklist
Who can usually apply
- Employee (not a genuine independent contractor)
- Minimum employment period met:
- 6 months (most employers)
- 12 months if the employer is a small business (fewer than 15 employees)
- Covered by a modern award or enterprise agreement, or under the high‑income threshold
- Casuals may be eligible if work was regular and systematic with a reasonable expectation of ongoing work
- Dismissal was not a genuine redundancy
Common exclusions and issues
- Independent contractors generally cannot claim unfair dismissal
- High‑income employees not covered by an award/agreement may be excluded
- Resignation: may still qualify if it was a constructive dismissal (forced to resign)
- Small Business Fair Dismissal Code can affect outcomes (see below)
- Applications must be filed within 21 days of dismissal taking effect
The 21‑day time limit
You must lodge your FWC unfair dismissal application within 21 calendar days from the date your dismissal took effect. The Commission only grants extensions in exceptional circumstances, so act quickly. If a public holiday falls within the period, the deadline still generally applies unless the FWC specifies otherwise.
- Count from the day after dismissal took effect
- Lodge online with the FWC using the F2 form
- If late, you must explain why and show exceptional circumstances
Unfair dismissal process – step by step
| Stage | What usually happens |
|---|---|
| Eligibility & strategy | Check employment status, minimum period, coverage and whether the issue is unfair dismissal, general protections or something else. Identify desired outcome (reinstatement, settlement, references). |
| Application (F2) | Lodge within 21 days. Set out reasons the dismissal was harsh, unjust or unreasonable. Attach key documents and timeline. |
| Employer response (F3) | Employer generally has 7 days to respond. They may oppose eligibility or set out reasons for dismissal. |
| Conciliation | Usually by phone within a few weeks. Many cases settle with a deed of release covering payment terms, reference/statement of service and confidentiality. |
| Conference/hearing | If not resolved, the FWC sets directions for evidence and a conference or hearing. Witness statements, documents and submissions are exchanged before a decision. |
| Outcome | Primary remedy is reinstatement. If inappropriate, compensation can be ordered (subject to the cap). Each case turns on its facts. |
Costs, compensation and realistic outcomes
What it might cost
- FWC filing fee applies (indexed annually). Fee waivers may be available for financial hardship.
- Each party usually pays their own legal costs. Costs orders are uncommon and only made in limited circumstances (for example, if a case had no reasonable prospects or a party acted unreasonably).
- Lawyer pricing varies: fixed fees for conciliation, hourly rates for hearings, and some firms offer conditional fees for strong cases.
What you could receive
- Reinstatement with continuity of service and potential back pay
- Compensation if reinstatement is inappropriate, capped at the lesser of:
- 26 weeks’ remuneration, or
- Half of the high‑income threshold immediately before dismissal
- Settlements at conciliation often include a payment plus a statement of service and agreed terms
Evidence and documents that help
Strong, organised evidence improves settlement prospects and hearing outcomes. Create a short timeline and gather the records below.
- Employment contract, position description and any variations
- Termination letter or email and final payslip
- Performance reviews, warnings and improvement plans
- Rosters, timesheets, leave approvals and pay records
- Relevant workplace policies and procedures
- Emails, messages and notes of meetings related to the issues
- Award or enterprise agreement classification and rate of pay
- Any medical certificates or evidence relevant to capacity issues
Small Business Fair Dismissal Code
The Code applies if the employer has fewer than 15 employees (headcount). It matters because if the employer complied, the dismissal is more likely to be considered fair.
- Serious misconduct can justify summary dismissal (for example, theft, violence, serious safety breaches)
- For performance or conduct issues short of serious misconduct, the employee should receive a clear warning and a reasonable chance to improve
- Employers should keep notes of discussions and warnings to show Code compliance
If you’re not eligible for unfair dismissal
If unfair dismissal isn’t available, consider these pathways. Some have different time limits and proof requirements, so get advice promptly.
- General Protections (adverse action) dismissal claim (no minimum employment period; motive matters)
- Discrimination or victimisation claims under state or federal law
- Redundancy entitlements if it wasn’t a genuine redundancy
- Breach of contract or underpayment claims
- Stop-bullying or stop-sexual-harassment orders for ongoing workplace risks
Find unfair dismissal lawyers near you
What a lawyer can do
- Confirm eligibility and the best forum (unfair dismissal vs general protections)
- Draft the application and evidence to strengthen your position
- Negotiate at conciliation for a better settlement
- Represent you at conference/hearing if required
How fees commonly work
- Free initial eligibility call in many firms
- Fixed-fee conciliation packages are common
- Hourly rates for hearings; some firms offer conditional or deferred fees
- Ask about costs disclosures and likely ranges before you proceed
Unfair dismissal FAQ
Do I have to ask for reinstatement?
No. While reinstatement is the primary remedy, many applicants seek compensation and a clean separation. Your goals should be clear before conciliation.
What is a “genuine redundancy”?
It’s when the employer no longer requires the job to be done by anyone and the employer complied with consultation obligations under an applicable award or enterprise agreement. If the redundancy is genuine, an unfair dismissal claim won’t succeed.
Can casuals claim unfair dismissal?
Yes, if they worked on a regular and systematic basis with a reasonable expectation of ongoing work and meet the other eligibility criteria.
Will I have to attend a hearing?
Not always. Many matters resolve at conciliation by phone. If unresolved, the FWC may list a conference or hearing and give directions for evidence.
Can I recover my legal fees?
Usually no. Each party bears their own costs unless the FWC orders otherwise in limited situations (for example, unreasonable conduct or a case with no reasonable prospects).
What if my employer says it was serious misconduct?
The FWC will consider whether serious misconduct actually occurred and whether the employer followed a fair process. Evidence and credible witness accounts are important.
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