E
Eligibility
Who can make an unfair dismissal claim
The real issue
Unfair dismissal is about the process as much as the outcome. Even if you did something wrong, if the employer failed to follow a fair process — no warning, no opportunity to respond, no investigation — the dismissal can still be found unfair. The Fair Work Commission assesses both whether there was a valid reason and whether the employer acted fairly in the circumstances.
| Eligibility requirement | Detail |
|---|---|
| Minimum employment period | You must have been employed for at least 6 months (1 year for small businesses with fewer than 15 employees) before the dismissal. Casual employees count if they were engaged on a regular and systematic basis. |
| Earnings threshold | If your annual earnings exceed the high-income threshold ($175,000+ as of 2026 — check current FWC rate), unfair dismissal does not apply unless you're covered by a modern award or enterprise agreement. |
| National System Employee | Most employees in Australia are covered by the national Fair Work system. State government employees, some local government employees, and some industries may be covered by state systems instead. |
| Not a genuine redundancy | If your role was genuinely made redundant, unfair dismissal does not apply — but general protections claims may. A redundancy is only genuine if the job no longer exists and redeployment was considered. |
| Not covered by a consistent pattern of casual work ending | A fixed-term contract ending at its natural expiry is generally not a dismissal. However, repeated renewal followed by non-renewal may be. |
D
21-day deadline
The 21-day deadline — how to count it and how to file
21
Calendar Days
From the date dismissal takes effect (your last day of employment, not the date you were told). File at fwc.gov.au or call 1300 799 675.
Count calendar days — not business days. Weekends and public holidays are included. If day 21 falls on a weekend or public holiday, the deadline moves to the next business day — but do not rely on this. File as early as possible.
| Step | Action |
|---|---|
| 1. Go to fwc.gov.au immediately | The Fair Work Commission's online form for unfair dismissal applications (Form F2) is at fwc.gov.au. Filing online takes approximately 30 minutes. You do not need a lawyer to file. |
| 2. Filing fee | $84.60 (2026 rate — check current fee on FWC website). Fee waiver available for financial hardship. |
| 3. What you need to file | Your name and contact details, employer's name and ABN, the date your employment ended, the reason given for dismissal, and a brief statement of why you believe the dismissal was unfair. Detailed evidence comes later. |
| 4. If you're unsure whether you're eligible | File anyway and let the Commission determine eligibility. An application dismissed for ineligibility costs you $84.60. Missing the deadline costs you your entire claim. |
P
The process
What happens after you file — conciliation to hearing
| Stage | What happens |
|---|---|
| Employer response | After you file, FWC notifies the employer who submits a response (Form F3). You receive a copy. This is when you first see their formal account of events. |
| Conciliation (phone conference) | A Fair Work Commissioner facilitates a confidential phone conciliation between you and the employer. The goal is settlement — most unfair dismissal claims (approximately 70%) resolve at this stage. The conciliator does not decide the case but helps parties find common ground. |
| If conciliation fails — arbitration hearing | If no resolution is reached, the matter proceeds to a formal hearing. Both parties present evidence and submissions. The Commissioner makes a binding decision. Hearings are more formal — consider legal representation if it proceeds here. |
| Timeline | Conciliation typically occurs within 3–6 weeks of filing. If the matter proceeds to hearing, it may be 3–6 months before a decision is made. |
Free legal advice before conciliation: Community Legal Centres provide free employment law advice. The Fair Work Commission itself has a self-representation service (1300 799 675). Your union (if you're a member) provides representation. Seek advice before conciliation — knowing your case's strengths and weaknesses helps you negotiate effectively.
O
Outcomes
What outcomes are possible — reinstatement vs compensation
| Outcome | What it means |
|---|---|
| Settlement at conciliation | The most common outcome. Typically a payment in exchange for withdrawing the application. Amount varies — often 4–12 weeks' pay depending on circumstances. Settlement is confidential. |
| Reinstatement (if hearing proceeds) | The primary remedy under the Fair Work Act. The Commissioner can order you be reinstated to your position. In practice, most applicants prefer compensation — the employment relationship has usually broken down. |
| Compensation (if hearing proceeds) | Capped at 26 weeks' pay (or the high-income threshold amount, whichever is lower). The Commission considers lost income, length of service, impact on securing new employment, and any contributing conduct by the applicant. |
| Application dismissed | If the Commissioner finds the dismissal was not unfair, or the applicant was ineligible, the application is dismissed. No compensation is payable. |
General protections (adverse action) claims are a separate avenue available if you were dismissed for exercising a workplace right — e.g. making a complaint, taking personal leave, or being a union member. General protections apply regardless of income and have a 21-day deadline as well. Ask a community legal centre whether your situation involves both unfair dismissal and general protections.