Unfair Dismissal in Australia: Deadlines, Forms and What the Fair Work Commission Decides (2026)

Who can apply

Not every dismissed employee qualifies. The Fair Work Act 2009 (Cth) sets out the threshold conditions in Part 3-2.

First, the minimum employment period. Employees of a small business — defined in the Act as a business with fewer than 15 employees at the time of dismissal — must have completed at least 12 months of continuous service. For everyone else, the minimum period is 6 months.

Second, the salary cap. Under s 382(b)(iii), an employee whose annual earnings exceed the high-income threshold cannot bring an unfair dismissal claim unless they are covered by a modern award or enterprise agreement. The threshold is indexed each July; from 1 July 2025, the Fair Work Commission set it at $183,100 in total annual remuneration.

Third, the dismissal must not be a "genuine redundancy" within the meaning of s 389. A redundancy is genuine when the employer no longer requires the job to be done, properly consulted under any applicable award or agreement, and redeployment was not reasonable. If all three elements are met, the unfair dismissal jurisdiction is excluded — though the employee may still have a general protections avenue.

The 21-day deadline and how it is counted

The deadline runs from the day after the dismissal takes effect, not from when the employee receives a letter or is told verbally. Under s 394(2), the Commission can extend time only if it is "satisfied that there are exceptional circumstances." The decided cases set a high bar: a mental health crisis that prevented any contact, or an employer who actively misled the employee about the dismissal date, have succeeded. Ignorance of the law does not.

Practical note: if the employer pays in lieu of notice, the dismissal still takes effect on the last day of employment, not at the end of the notice period. Several employees have learned this after assuming the notice period gave them more time.

How to file

Applications are made using Form F2 — Unfair Dismissal Application. The fee for 2025–26 is $89.70 (waivable on financial hardship grounds using Form F80 under the Fair Work Regulations 2009). The form goes through the Commission's online portal or by email; hardcopy lodgment at a Commission Registry is still accepted but slower.

The form asks for the date of dismissal, the employment period, the reason the employer gave (if any), the applicant's earnings, and a short statement of why the dismissal was unfair. Lengthy submissions at this stage are unnecessary — the statement is used to triage the case and prepare for conciliation, not to make final arguments.

Once filed, the employer receives a copy and a conciliation date is set, usually within 14 to 28 days.

What the Commission actually considers

If conciliation does not resolve the matter, a Member hears the case under s 387. That section lists the matters the Commission must take into account, and the weight given to each varies by industry and seniority.

The most litigated factors are whether there was a valid reason for the dismissal related to capacity or conduct, and whether the employee was notified of the reason and given an opportunity to respond before the decision was made. The procedural elements under s 387(b) to (f) are not merely technicalities — a dismissal for solid reasons can still be found unfair if the employer skipped a show-cause meeting or failed to allow a support person.

Larger employers with HR departments face a stricter standard. The Commission has consistently held — including at Full Bench level in decisions such as B, C and D v Australian Postal Corporation [2013] FWCFB 6191 — that proportionality and consistency of enforcement matter more when an organisation has policies, trained managers, and ready access to legal advice.

Outcomes: reinstatement vs compensation

Under s 390, the primary remedy is reinstatement. In practice, fewer than 5% of successful applicants are reinstated — the relationship is usually too damaged, and employees more often want compensation.

The compensation cap under s 392(5) is either 26 weeks' pay or one-half of the high-income threshold (currently $91,550 for dismissals on or after 1 July 2025), whichever is lower. The Commission starts from the lost remuneration, then discounts for the chance the employee would have been dismissed anyway, failure to mitigate (by looking for other work), and any payment already made by the employer. Misconduct that contributed to the dismissal can further reduce the amount under s 392(3).

There is no general damages head for distress or injury to feelings. The cap applies regardless of how badly the employer behaved.

Small business and the Small Business Fair Dismissal Code

Businesses with fewer than 15 employees are entitled to rely on the Small Business Fair Dismissal Code 2009 when defending a summary dismissal for serious misconduct. The Code requires that the employer believed, on reasonable grounds, that the employee was guilty of serious misconduct, and that the employee was given an opportunity to respond. A checklist approach — writing down what evidence existed before the decision was made — creates the paper trail that either satisfies the Code or exposes the gaps.

For small business performance dismissals (as distinct from summary dismissals), the Code requires a warning that puts the employee on notice of unsatisfactory performance and gives a reasonable opportunity to improve. One undocumented verbal warning is rarely enough.

General protections: a separate avenue worth knowing

Unfair dismissal and general protections are distinct causes of action. The general protections provisions in Part 3-1 of the Fair Work Act prohibit dismissal because an employee exercised a workplace right — for example, taking personal leave, making a complaint, or being a union delegate. The deadline for a general protections application involving dismissal is also 21 days (s 366(1)).

The practical difference matters: general protections carry a reverse onus of proof under s 361. Once the employee shows that a protected attribute or exercise of a workplace right existed and dismissal occurred, the employer must prove that protected attribute was not a reason. Compensation under general protections is uncapped. Employees who were dismissed after raising a safety complaint or taking parental leave should consider which pathway fits better before filing.

What to prepare before lodging

Before completing the Form F2, gather the following: the exact date employment ended, payslips showing annual earnings, any termination letter or email from the employer, records of any warnings or performance reviews, and a note of whether the employer has fewer than 15 employees. Awards or enterprise agreements covering the role can be found on the Fair Work Commission's website.

Forms-legal.com provides a free unfair dismissal application template for Australia that follows the Commission's Form F2 structure — useful for mapping out the required information before lodging through the official portal. A related document to consider at this stage is the deed of settlement, which captures any conciliation outcome in a binding form.

A note on timing strategy

Applicants sometimes file quickly with a thin statement, intending to fill in detail later. That is acceptable procedurally — the statement is not an affidavit. The risk is that a vague application signals to the conciliator that the case is weak, potentially affecting settlement dynamics. A short but specific statement identifying the date, the reason given by the employer, what was wrong with the process, and what the applicant is seeking tends to produce a more productive conciliation than a page of aggrieved narrative.

The 21-day deadline is fixed. Everything else can be refined.