Losing your job is one of the most stressful events a person can face. When it happens without warning, without good reason, or without any chance to defend yourself, the legal term for it is unfair dismissal. In Australia, most employees have specific rights under the Fair Work Act 2009, and tens of thousands of claims are lodged with the Fair Work Commission every year.
But not every unhappy ending at work qualifies as unfair dismissal under the law. Understanding whether you have a case, and how much time you have to act, is critical. This guide walks you through everything you need to know.
What Is Unfair Dismissal?
Under section 385 of the Fair Work Act 2009, a dismissal is considered unfair when the Fair Work Commission finds it was harsh, unjust, or unreasonable. The Commission looks at both the reason for dismissal and the process the employer followed.
A dismissal can be harsh even when there was a valid reason, for example if a long-serving employee with a clean record is fired for a single minor mistake. Unjust means the employee did not actually do what they were accused of. Unreasonable often relates to process failures, such as not giving the employee a chance to respond before the decision was made.
Genuine redundancy is not considered unfair dismissal, but only if the employer no longer requires that role to be performed, followed consultation obligations under an award or enterprise agreement, and genuinely explored redeployment options.
Are You Eligible to Make a Claim?
Not every dismissed employee can access the unfair dismissal system. To be eligible, you must meet all of the following:
- Minimum employment period: 6 months for employers with 15 or more employees, or 12 months for small businesses with fewer than 15 employees
- Coverage: You must be covered by the national workplace relations system
- Award or agreement coverage or income cap: You must be covered by a modern award or enterprise agreement, or earn below the high income threshold of $183,100 per year (as of 1 July 2025)
Casual employees are eligible if they were employed on a regular and systematic basis with a reasonable expectation of ongoing work. Independent contractors generally cannot make an unfair dismissal claim, though some may qualify depending on the nature of the working arrangement.
If you earn above the income threshold and are not covered by an award or agreement, you may still have options through a general protections claim, which has no income cap. Use the eligibility quiz at the Fair Work Commission website to check your situation.
The 21-Day Deadline: Do Not Miss This
You must lodge your application with the Fair Work Commission within 21 calendar days of the dismissal taking effect. This is 21 calendar days, not business days, meaning weekends and public holidays count. The clock starts on the day after your dismissal takes effect, not the day you were told about it.
Extensions are rarely granted and only in exceptional circumstances, such as serious illness or being misled by your employer about your rights. Missing this deadline will almost certainly end your claim. If you are unsure of your dismissal date, seek legal advice immediately.
How to Make a Claim
Step 1: Lodge Your Application
Complete Form F2 from the Fair Work Commission website and lodge it online, by email, by post, or in person at a Commission registry. The filing fee for 2025-26 is $87.20, though waivers are available in cases of genuine financial hardship.
Step 2: Conciliation
Most unfair dismissal cases are referred to a confidential telephone conciliation session. A Commission conciliator helps both parties discuss the dispute and explore a resolution. Around 70 to 80 percent of cases settle at this stage without proceeding to a formal hearing.
Step 3: Formal Hearing
If conciliation does not resolve the matter, the case proceeds to a hearing before a Commissioner, who will examine the evidence and decide whether the dismissal was unfair. Full legal representation is allowed at this stage, and the Commission will assess the reason for dismissal, the process followed, and all relevant circumstances. For practical guidance on what the Commission considers, the Fair Work Ombudsman website provides plain-language explanations.
What Remedies Are Available?
If the Commission finds your dismissal was unfair, two remedies are available:
- Reinstatement: Being returned to your former position with back-pay for lost income. This is the primary remedy under the Act, but is ordered in only a small percentage of successful cases, typically where the employment relationship has not irreparably broken down.
- Compensation: A payment capped at 26 weeks’ pay or half the high income threshold (currently $91,550 for 2025-26), whichever is lower. Compensation covers lost income only and cannot include payments for distress or hurt feelings.
The Commission will take into account any income you have earned since your dismissal and your efforts to find new work when calculating the final amount.
Conclusion
If you were let go without a valid reason, without a fair process, or without any warning for a performance issue, you may well have an unfair dismissal case. The key is to act fast, given the strict 21-day window, and to document everything you can remember about the circumstances of your dismissal.
Getting early advice from an employment lawyer or a union representative can make a significant difference to the strength of your application. You can find free or low-cost legal assistance through your state’s legal aid service or through the Fair Work Commission’s own information line.
Frequently Asked Questions
1. Can I make an unfair dismissal claim if I resigned?
You may be able to claim if you were forced to resign because of your employer’s conduct, known as constructive dismissal. You must show that you had no real choice but to resign. This is a higher bar to meet than a straightforward dismissal claim and requires good evidence of the employer’s behaviour.
2. Does it matter if I was on probation?
Being on probation does not automatically disqualify you, but the minimum employment period usually aligns with standard probation lengths. If you were dismissed within your first 6 months (or 12 months at a small business), you will not meet the minimum employment period and cannot make an unfair dismissal claim.
3. What if my employer says my role was made redundant?
A genuine redundancy is not unfair dismissal, but the employer must show the role is no longer needed, that they followed consultation obligations under any applicable award or enterprise agreement, and that redeployment was explored. If they hired someone else into your role shortly after, it is likely not a genuine redundancy.
4. Do I need a lawyer to make a claim?
No. You can represent yourself at the Fair Work Commission. The process is designed to be accessible, and the Commission’s staff can explain procedural steps. However, legal advice before lodging your application can help you assess your chances and present the strongest possible case.
5. How long does the process take?
Most cases that go to conciliation are resolved within four to eight weeks of lodging the application. Cases that proceed to a formal hearing can take several months. The timeline depends on the complexity of the dispute and the availability of hearing dates in your state.