If your employment has just ended and you believe the dismissal was harsh, unjust or unreasonable, one number should now dominate your planning: 21. That is how many days you have to lodge an unfair dismissal application with the Fair Work Commission (FWC), and it is the deadline that decides whether your claim is heard at all. Missing it is the most common way an otherwise valid claim dies.
A successful claim ends with an FWC order: reinstatement to your old job, or compensation in lieu of reinstatement capped at 26 weeks' pay. What many people picture as a courtroom battle is actually a structured, largely administrative process with five stages, and most claims settle at the conciliation stage, usually by phone, without any hearing. This article walks you through the whole path, from the eligibility checklist to the final decision, and flags where applicants typically get held up.
Before you apply: the eligibility checklist
Unfair dismissal protection is not automatic. Part 3-2 of the Fair Work Act 2009 (Cth) (the Act) sets out who is protected, and the FWC checks every application against those rules before the claim goes anywhere. You should be able to tick off every item on this list:
- You were dismissed: Under s 386 of the Act, that means your employment was terminated on the employer's initiative, or you resigned because the employer's conduct forced you to (constructive dismissal). It does not include a fixed-term contract ending naturally, a demotion that does not significantly cut your pay or duties, or a resignation you chose freely.
- You completed the minimum employment period: Six months if your employer is not a small business, and 12 months if it is (s 383). A small business employer is one with fewer than 15 employees, counting regular casuals and the dismissed employee (s 23).
- You are covered by the national system: Employees of Pty Ltd companies are covered in every state. Sole traders and partnerships are covered everywhere except Western Australia, where they come under the state industrial relations system, as do state and local government employees in several states.
- You pass the earnings or coverage test: You are protected if a modern award covers you or an enterprise agreement applies to your employment. If neither applies, your earnings must be below the high income threshold, which is $190,100 for the 2026-27 year (s 382).
- The dismissal was not a genuine redundancy: A dismissal is not unfair if your job was genuinely no longer required because of changes in operational requirements, the employer met its consultation obligations, and it was not reasonable to redeploy you (ss 385 and 389).
- The Small Business Fair Dismissal Code does not protect the employer: If your employer had fewer than 15 employees and followed the Code when dismissing you, the dismissal is not unfair (s 388).
- You are still inside the 21-day window: The application must be made within 21 days after the dismissal took effect, unless the FWC allows a longer period for exceptional circumstances (s 394).
The two items that most often trip people up are the minimum employment period and the income test. Casual service only counts toward the period if you worked on a regular and systematic basis, and the high income threshold is adjusted every 1 July, so a figure you saw last year may no longer apply. If you are not sure whether you qualify on any of these points, have the assessment done properly before you commit to the process, because the 21-day clock does not pause while you work it out.
How the claim runs: five stages
Lodge Form F2 within 21 days
The claim starts with an unfair dismissal application (Form F2). Online lodgement through the FWC portal is the default and fastest option. You can also download the form and email it to lodge@fwc.gov.au, or post or hand-deliver it to a Commission office. The form asks for your details, your employer's details, your employment dates, the date and reason for the dismissal, and whether you are seeking reinstatement or compensation. You must also acknowledge that you will pay the application fee and take part in conciliation.
The application fee is $92.70 for 2026-27, and it is refunded if you discontinue the case before a conciliation, conference or hearing date is set. If you are in serious financial hardship, you can ask for the fee to be waived using Form F80.
The deadline is the part to get right. The 21 days run from the day the dismissal took effect, which is the day your contract of employment ended: your last day of work, your last day of paid leave, or a later date stated in your notice of termination. If you are paid instead of working out your notice, the dismissal usually takes effect immediately.
If you are late, the FWC can only extend the period where there are exceptional circumstances, assessed against the reason for the delay, when you became aware of the dismissal, any action you took to dispute it, prejudice to the employer, the merits, and fairness (s 394). Serious illness, a death in the family, or an error by a lawyer or paid agent can qualify. Not knowing the deadline, being busy or upset, or misreading the dismissal date generally cannot, and the FWC warns that most extension requests are declined. If you think you are close to the line, lodge as soon as you can with the information you have; you can add detail later.
The Commission checks your application
Once lodged, FWC staff check that the application is complete and that you appear eligible. If information is missing, they will contact you to fix it rather than reject it outright.
At this stage your employer can also raise a jurisdictional objection: that you were not dismissed, that you had not served the minimum employment period, that your earnings exceed the threshold, or that the dismissal was a genuine redundancy or consistent with the Small Business Fair Dismissal Code. If an objection is raised, the FWC may decide it at a hearing before the merits of your claim are considered. This is where an application drafted without care can fail early.
Your employer responds on Form F3
The FWC sends a copy of your application to your employer, who must respond within seven days using Form F3. The response sets out the employer's version of events: the reason it dismissed you, its position on your eligibility, and whether it claims the dismissal was a genuine redundancy or was consistent with the Small Business Fair Dismissal Code.
For employers, this form is the first chance to shape the case, and it matters more than most realise: the response frames what the conciliation and any hearing will be about. If you are the employer and have received a Form F2, treat the seven-day deadline seriously, because the Commission expects a response even if you plan to object.
Conciliation: where most claims settle
After the response, the FWC arranges a conciliation, typically a few weeks later. It is a voluntary and confidential discussion, usually conducted by phone or online meeting and taking up to 90 minutes, led by a conciliator who is an independent senior staff member of the Commission. The conciliator's job is to help both sides talk through the issues and reach agreement, not to decide the case. Around three quarters of unfair dismissal cases settle at or before conciliation.
Outcomes at conciliation are flexible: reinstatement, a payment, an agreed statement of service or reference, or withdrawal of the claim. If you agree, the conciliator records the terms of settlement for both sides to sign. You are not obliged to settle, and if no agreement is reached the case moves to the next stage.
The hearing: proving the dismissal was unfair
If conciliation does not resolve the matter, the case goes to a member of the Commission for a conference or formal hearing. The member decides whether the dismissal was harsh, unjust or unreasonable (s 385) by applying the criteria in s 387:
- whether there was a valid reason for the dismissal related to your capacity or conduct;
- whether you were notified of that reason and given an opportunity to respond;
- whether you were unreasonably refused a support person;
- whether you were warned about unsatisfactory performance before the dismissal; and
- the size of the employer's enterprise and whether it had dedicated human resources expertise.
In practice the case turns on the evidence you and the employer put before the member. If you succeed, the primary remedy contemplated by the Act is reinstatement (s 391). Where that is not appropriate, the Commission can order compensation in lieu (s 392), capped at the lesser of 26 weeks' remuneration or half the high income threshold. The amount is reduced for misconduct that contributed to the dismissal, and for earnings from new work, because you are expected to mitigate your loss. No amount is awarded for distress or hurt feelings. The decision and any order are published on the FWC website.
Across these five stages, applicants typically get held up in the same few places:
- Missing the 21-day deadline: It is the most common failure and the hardest to fix, because extensions require exceptional circumstances and most are declined. Diarise the date the dismissal takes effect on the day it happens.
- Getting the dismissal date wrong: Payment in lieu of notice and unused leave both shift the date the dismissal takes effect, and a one-day miscalculation can put you outside the window.
- Assuming any redundancy is a defence: The label does not matter; what matters is whether the job was genuinely redundant, consultation occurred, and redeployment was unreasonable (s 389).
- Treating conciliation as a formality: Most claims resolve there. An applicant who has not worked out what outcome they want, and what they would accept, gives away the main advantage of the process.
When legal help makes a difference
You can run an unfair dismissal claim without a lawyer, and the FWC is designed to be accessible to self-represented applicants. But there are points in the process where professional input pays for itself:
- Before lodging: checking eligibility properly, including constructive dismissal, how casual service counts, whether associated entities push the headcount over 15, and the earnings test. A wrong call wastes the fee and the 21-day window.
- If you are late: assessing whether exceptional circumstances exist and, if so, preparing the extension application, because a poorly argued extension request is usually declined.
- Drafting the Form F2: setting out the particulars of the dismissal and the remedy sought in a way that survives a jurisdictional objection.
- At conciliation: negotiating with a clear view of what the claim is worth, what the compensation cap allows, and which of the s 387 factors favour you.
- At the hearing: preparing witness statements and submissions, and presenting or testing evidence if representation is permitted.
If you are the employer who has received a Form F2, the same advice applies in reverse. The Form F3 response frames the entire case, and advice before you file it, rather than after conciliation fails, is usually the cheapest insurance available.
The 21-day clock decides more than anything else
The single factor that determines whether your unfair dismissal claim gets off the ground is the 21-day deadline. Everything else, the eligibility checks, the conciliation, the hearing, can be worked through with help, but a claim lodged one day late is a claim that needs exceptional circumstances to survive, and most of those applications fail. The day your employment ends, work out the exact date the dismissal takes effect and diarise the lodgement deadline before you do anything else.
The rest of the process is more forgiving than most people expect. Work through the eligibility checklist, lodge Form F2 with your particulars and the $92.70 fee, let the Commission check your application, respond to the employer's Form F3 position, and take the conciliation seriously, because that is where most claims resolve. If it does not settle, the hearing comes down to whether the dismissal was harsh, unjust or unreasonable against the s 387 criteria, with reinstatement or capped compensation as the remedies. If any step is unclear, an employment lawyer can assess your position early and keep the process on track, but the clock does not wait for advice.