How to Handle Unfair Dismissal Claim at Fair Work Commission

When an Australian employee is dismissed and believes the dismissal was harsh, unjust, or unreasonable, they can file an unfair dismissal claim at the Fair Work Commission (FWC) under Part 3-2 of the Fair Work Act 2009 (Cth). The procedure is fast, accessible, and tightly time-bound. Both employers responding to claims and employees considering filing benefit from understanding the steps. This how-to walks through the unfair dismissal process step by step from filing to outcome.

Step 1 — Confirm Eligibility (Section 382)

Under section 382 Fair Work Act, an employee can claim unfair dismissal only if:

• They were dismissed (sections 386-393)
• They were employed for the minimum employment period:
  • 6 months for employers with 15+ employees
  • 12 months for small business employers (< 15 employees)
• They were covered by:
  • A Modern Award OR
  • An Enterprise Agreement OR
  • Earned less than the high income threshold (A$175,000 for FY2025-26, indexed annually)
• They are not excluded by section 382 (e.g., genuine redundancy, summary dismissal for serious misconduct, casuals without regular pattern)

The high income threshold is significant — many senior managers and professionals earning over A$175,000 cannot bring unfair dismissal unless covered by an Award or EA.

Primary source: https://www.legislation.gov.au/Details/C2024C00343

Step 2 — File Within 21 Days

Under section 394(2), the application must be filed within 21 days of dismissal taking effect. The 21-day period:

• Includes weekends and public holidays
• Cannot be extended without exceptional circumstances (section 394(3))
• The FWC has historically been strict — late applications are usually dismissed

The form is Form F2 (“Unfair Dismissal Application”), filed online via the FWC e-filing portal.

Filing fee: A$87.20 (FY2025-26, indexed). Fee waiver available for hardship.

Reference: https://www.fwc.gov.au/unfair-dismissals

Step 3 — Form F2 Content

Form F2 requires:

• Applicant identity
• Respondent (employer) identity
• Date dismissed
• Last day worked
• Date claim filed
• Reason for dismissal (as stated by employer)
• Why the dismissal is unfair
• Remedy sought (reinstatement, compensation, both)
• Income particulars

Key writing tips:

• Be factual — facts before adjectives
• Be chronological — establish timeline clearly
• Be specific — names, dates, places, conduct
• Be proportionate — claims that overreach lose credibility

Step 4 — Employer Response (Form F3)

Within 7 days of being notified by the FWC, the employer must respond on Form F3:

• Confirming or denying jurisdictional facts (employment dates, dismissal date, etc.)
• Stating the reason for dismissal
• Providing evidence supporting the dismissal

Failure to respond can result in default adverse outcomes for the employer.

Step 5 — Conciliation Conference

The FWC schedules a conciliation conference within 3-5 weeks of filing. Conciliation:

• Conducted by an FWC conciliator (telephone, sometimes in person)
• Confidential and without prejudice
• Aims for settlement
• 60-90 minutes typically

Settlement options include:

• Reinstatement
• Compensation (typically 4-26 weeks’ pay)
• Apology / agreed reference
• Confidentiality agreement
• Withdrawal of claim with costs payment

Approximately 75-80% of unfair dismissal claims settle at conciliation. The conciliation outcome is legally binding if signed.

Step 6 — Hearing (If Conciliation Fails)

Where settlement is not reached:

6.1 Pre-Hearing

• Statement of facts and contentions — applicant files
• Response — employer files
• Witness statements — both parties exchange
• Document production — both parties disclose
• Pre-hearing conference may be held to narrow issues

6.2 Hearing

• Held in person at FWC Sydney/Melbourne/regional centres or by video
• 1-3 days typically
• FWC member presides
• Each party calls witnesses
• Cross-examination
• Closing submissions

6.3 Decision

The member’s written decision typically issued 6-12 weeks after hearing.

Step 7 — The Statutory Test (Section 387)

The FWC must consider all of the following criteria under section 387:

• (a) Whether there was a valid reason for the dismissal related to capacity or conduct
• (b) Whether the person was notified of that reason
• (c) Whether the person was given an opportunity to respond to the reason
• (d) Whether the person had been warned about unsatisfactory performance
• (e) Whether the dismissal was related to redundancy and was genuine redundancy
• (f) The size of the employer’s enterprise — small businesses have lighter procedural expectations
• (g) Whether the employer engaged a dedicated human resource specialist
• (h) Any other matters the FWC considers relevant

The combination of substantive (was there a valid reason?) and procedural (was it fair?) is critical. A valid reason poorly executed can still be unfair.

Step 8 — Possible Remedies (Sections 390-392)

8.1 Reinstatement (Section 391)

The FWC’s preferred remedy under section 390. Reinstatement orders include:

• Return to the same position or comparable
• Continuity of service
• Compensation for lost income from dismissal to reinstatement

In practice, reinstatement is often impractical (relationship breakdown). Many cases result in compensation only.

8.2 Compensation (Section 392)

If reinstatement inappropriate, the FWC orders compensation:

• Capped at the lesser of:
  • 26 weeks’ pay
  • Half the high income threshold (A$87,500 for FY2025-26)

Reductions for:

• Misconduct contribution
• Likely outcome had procedure been fair
• Mitigation (other employment found)
• Length of unemployment

In most cases, compensation falls between 4-16 weeks’ pay.

Step 9 — Small Business Fair Dismissal Code

For employers with < 15 employees, the Small Business Fair Dismissal Code (under section 388) applies. The Code:

• Provides a simplified test for unfair dismissal
• Confirms summary dismissal is permitted for serious misconduct without procedure
• Provides procedural standards for dismissal-on-notice cases (warning, opportunity to respond)
• A completed checklist is presumptive evidence of fair process

If the employer correctly follows the Code, dismissal is unlikely to be unfair.

Step 10 — Genuine Redundancy Exclusion

Under section 389, dismissal for genuine redundancy is excluded from unfair dismissal claims. To be genuine:

• The role is no longer required by the employer
• The employer has met consultation obligations under any applicable Modern Award/EA
• It would not have been reasonable to redeploy the employee in the employer’s enterprise or associated entity

If consultation or redeployment fails, the redundancy is not genuine, and the dismissal can still be unfair.

Common Mistakes — Gyoseishoshi View

Step 11 — Costs

The FWC has limited cost jurisdiction under section 611. Generally:

• Each party bears own costs
• Costs orders rare — only for unmeritorious / vexatious claims
• Settlement at conciliation often includes goodwill cost contribution

Both sides should consider professional representation cost. While many self-represent, complex or high-value cases benefit from a workplace relations lawyer or registered industrial advocate.

Step 12 — Appeal

FWC decisions can be appealed to the Full Bench of the FWC under section 604:

• Application within 21 days of decision
• Permission required (FWC discretion)
• Generally only granted on questions of law or significant errors

Beyond Full Bench: Federal Court for judicial review on jurisdictional/procedural grounds.

Step 13 — Strategic Implications

For Employers

1. Document misconduct rigorously — written warnings, performance reviews, witnesses
2. Run procedural process — informed of reason, opportunity to respond, time to consider
3. Use Small Business Fair Dismissal Code if eligible — simplified protection
4. Settle at conciliation where possible — fast, certain, lower cost
5. Maintain personnel records — section 535 mandatory minimum 7 years

For Employees

1. File within 21 days — no exceptions for inadvertence
2. Be factual on Form F2 — credibility matters at hearing
3. Mitigate — actively seek replacement work; document attempts
4. Consider conciliation seriously — most claims settle there
5. Calculate compensation realistically — section 392 cap and reductions apply

Conclusion — A Tightly Choreographed Process

The unfair dismissal pathway at the FWC is one of Australia’s most accessible employment tribunals. The 21-day window, online filing, conciliation default, and modest fees combine to create a fast, employee-accessible regime. Employers who manage dismissal processes carefully — valid reason plus fair procedure — usually defend successfully. Those who skip steps face binding orders.

A Gyoseishoshi cannot represent Australian parties at the FWC. Scrib🐮 produces the corporate-side documentation: dismissal letter templates, performance management warning packs, Small Business Fair Dismissal Code checklists, and Form F3 response frameworks.

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Disclaimer

Legal information, not legal advice. MmowW Scrib🐮 is operated by a licensed Gyoseishoshi (行政書士) office in Japan. We are not Australian solicitors.

Sources

• Fair Work Act 2009 (Cth): https://www.legislation.gov.au/Details/C2024C00343
• Fair Work Commission (unfair dismissals): https://www.fwc.gov.au/unfair-dismissals
• Fair Work Ombudsman: https://www.fairwork.gov.au/
• Small Business Fair Dismissal Code: https://www.fairwork.gov.au/ending-employment/unfair-dismissal/small-business-fair-dismissal-code