Does the day I was dismissed count towards the 21 days?

The 21 days run from the day the dismissal took effect, which is the day the employment contract ended. That may be the last day of paid leave or a later date in a notice of termination, so check the date on the termination letter.

Can I claim unfair dismissal if I was paid in lieu of notice?

Yes, if you meet the other conditions. When an employer pays out notice instead of having you work it, the dismissal usually takes effect immediately, so the 21 days start from that day.

Is the Fair Work Commission application fee refundable?

Yes, in some cases. The fee is refunded if the applicant discontinues before a conciliation, conference or hearing date is set, or at least 2 days before the earliest listed date. The Commission can also waive the fee for serious financial hardship.

Can a labour hire worker claim unfair dismissal against the host business?

No. A labour hire worker can only bring an unfair dismissal application against the labour hire agency that employs them, not against the host business where they worked.

Can the employer be ordered to pay my legal costs?

Rarely. Under section 611 of the Fair Work Act 2009 (Cth), each party generally pays its own costs. The Commission can order costs only in limited cases, such as an application or response made vexatiously or without reasonable cause.

Unfair Dismissal in Australia: Eligibility, 21-Day Limit & Claims

An unfair dismissal claim must be lodged with the Fair Work Commission within 21 days after the dismissal takes effect, under section 394(2) of the Fair Work Act 2009 (Cth), if the dismissal was harsh, unjust or unreasonable. To qualify, an employee needs at least 6 months' service (12 months with a small business of fewer than 15 employees) and must earn less than the high income threshold, which is $190,100 for dismissals on or after 1 July 2026, or be covered by a modern award or enterprise agreement.

The first step is to confirm the date the dismissal took effect and count 21 days from it. Next, gather the termination letter, the employment contract, payslips and any warnings. Then lodge Form F2 with the Fair Work Commission and pay the $92.70 application fee (as at September 2026). Many employees and employers compare Employment Lawyers in Australia at this stage, because the deadline is short and jurisdictional objections are common.

What is unfair dismissal?

Unfair dismissal is a dismissal that meets all 4 elements of section 385 of the Fair Work Act 2009 (Cth):

The person was dismissed.
The dismissal was harsh, unjust or unreasonable.
The dismissal was not consistent with the Small Business Fair Dismissal Code (this applies only to small business employers).
The dismissal was not a case of genuine redundancy.

The Fair Work Commission describes a dismissal as "harsh" when it is an extreme or disproportionate response, "unjust" when the employee did not do what they were dismissed for, and "unreasonable" when the evidence does not support the decision.

Who can claim unfair dismissal?

An employee can claim unfair dismissal if they work for a national system employer, have completed the minimum employment period and earn below the high income threshold (or are covered by an award or enterprise agreement). Each condition is explained below.

How long must you have worked?

You must have worked for at least 6 months, or 12 months if the employer is a small business, under section 383 of the Fair Work Act. A small business has fewer than 15 employees at the time of the dismissal, counting the dismissed employee and regular casuals (section 23). Casual service counts only if the work was regular and systematic and the employee reasonably expected it to continue (section 384).

What is the high income threshold?

The high income threshold is $190,100 for dismissals that take effect on or after 1 July 2026. For dismissals between 1 July 2025 and 30 June 2026, it was $183,100. The figure is indexed each 1 July. An employee earning above it is protected only if a modern award covers them or an enterprise agreement applies to them.

Can you claim if you resigned?

A genuine resignation is not a dismissal. However, section 386(1)(b) treats a resignation as a dismissal if the employer's conduct forced the employee to resign. This is called constructive dismissal. A demotion with a significant reduction in pay or duties can also count as a dismissal.

Who is excluded?

These people cannot bring an unfair dismissal application with the Fair Work Commission:

Employees who have not completed the minimum employment period.
Independent contractors, volunteers and unpaid interns.
Employees whose fixed-term contract, task or season simply ended.
Employees made genuinely redundant under section 389.
Casual employees who did not work on a regular and systematic basis.
Employees outside the national system, such as most state and local government employees (see the state section below).

What is the time limit for unfair dismissal?

The time limit for unfair dismissal is 21 days after the dismissal takes effect. A dismissal takes effect when the employment contract ends, which may be the last day at work, the last day of paid leave or a later date in a notice of termination.

Under section 394(3), the Commission can extend the 21 days only in exceptional circumstances. The Commission states that most extension requests are declined. Not knowing about the deadline, being busy or upset, or going on holiday is usually not exceptional. Serious illness, the death of a family member, or a delay or error by a lawyer or paid agent are examples that can be.

What are fair reasons for dismissal?

A dismissal is fair when the employer has a valid reason and a fair process. The Commission weighs the criteria in section 387, and the common valid reasons are:

Capacity. The employee cannot do the inherent requirements of the job.
Performance. The employee's work stayed below the required standard after warnings.
Conduct. The employee breached policies or instructions.
Safety. The employee's conduct put the health and safety of others at risk.
Serious misconduct. Conduct such as theft, fraud or assault, as described in regulation 1.07 of the Fair Work Regulations 2009 (Cth).

A genuine redundancy is not unfair dismissal at all. For the process, section 387 asks whether the employee was told the reason, had a chance to respond, was allowed a support person and was warned about unsatisfactory performance. The size of the business and whether it had human resources staff are also considered.

How do you make an unfair dismissal claim?

An unfair dismissal claim follows 6 steps at the Fair Work Commission:

Firstly, lodge Form F2 within 21 days and pay the $92.70 fee (as at September 2026). An applicant in serious financial hardship can ask for the fee to be waived using Form F80.
Secondly, the employer responds on Form F3 within 7 days of receiving the application.
Thirdly, attend conciliation. This is a voluntary, confidential online meeting of about 90 minutes, usually held 2 to 5 weeks after the application.
Fourthly, any jurisdictional objection is decided. Examples are an objection that the claim is late, that the minimum employment period was not met or that the dismissal was a genuine redundancy.
Fifthly, a conference or hearing is held before a Commission Member if the matter does not settle.
Finally, a decision is made. A party can appeal to a Full Bench, but only with permission, which section 400 allows for unfair dismissal matters only if it is in the public interest.

How much compensation for unfair dismissal?

The most the Fair Work Commission can order in unfair dismissal compensation is the lower of half a year's pay (26 weeks) or $95,050, for dismissals on or after 1 July 2026, under section 392(5). The Commission reports that the median payment is between 5 and 7 weeks' pay, and fewer than 0.4% of applicants receive the maximum.

Annual salary	Half of annual pay	Compensation cap (1 July 2026)	Maximum order
$50,000	$25,000	$95,050	$25,000
$80,000	$40,000	$95,050	$40,000
$200,000 (award or agreement covered)	$100,000	$95,050	$95,050

Compensation covers lost pay only. Section 392(4) prevents any amount for shock, distress, humiliation or similar hurt. Reinstatement is the primary remedy, but the Commission states that it rarely orders it. It does not order reinstatement where the business has closed, the position no longer exists or the working relationship has broken down.

What reduces the payout?

Section 392(2) requires the Commission to consider what the employee earned after the dismissal and what efforts they made to find other work. Misconduct that contributed to the dismissal also reduces the amount.

Is it worth fighting an unfair dismissal?

The facts first. The median compensation is 5 to 7 weeks' pay. Each party usually pays its own legal costs under section 611. Conciliation is voluntary and confidential, and either side can refuse to settle.

A claim is usually worth pursuing when the employee meets every eligibility condition, lodges within 21 days and can point to a missing valid reason or an unfair process. A settlement at conciliation often includes items beyond money, such as a statement of service or an agreed reason for leaving. A claim with a clear jurisdictional problem is rarely worth the cost of a lawyer.

Unfair dismissal vs general protections: which claim applies?

Unfair dismissal asks whether the dismissal was harsh, unjust or unreasonable. A general protections claim says the dismissal happened for an unlawful reason. An employee can make only one type of dismissal application.

Feature	Unfair dismissal	General protections (dismissal)
Legal test	Harsh, unjust or unreasonable (s 385)	Dismissed for a prohibited reason (Part 3-1)
Minimum service	6 months (12 months small business)	None
Income cap on eligibility	$190,100 unless award or agreement covered	None
Time limit	21 days	21 days
Who decides	Fair Work Commission	Federal court, unless both parties agree to Commission arbitration
Compensation cap	Lower of 26 weeks' pay or $95,050	No statutory cap

Which states use a different system?

Most private sector employees in every state are in the national system and claim through the Fair Work Commission. The main exceptions are public sector and some unincorporated employers.

NSW

NSW state public sector and local government employees apply to the NSW Industrial Relations Commission. The application must be filed no later than 21 days after the dismissal.

Victoria

Victoria has referred its powers to the Commonwealth, so almost all Victorian employees claim through the Fair Work Commission. The exceptions include law enforcement officers and some state public sector executives.

Western Australia

Employees of sole traders, partnerships, unincorporated employers, the state public sector and local government apply to the Western Australian Industrial Relations Commission. The application must be made within 28 days of the dismissal.

South Australia

South Australian state and local government employees claim through the South Australian Employment Tribunal, within 21 days of the dismissal taking effect.

Queensland and Tasmania

Queensland state and local government employees, and Tasmanian state government employees, are covered by their state industrial relations systems rather than the Fair Work Commission.

What should an employer do when served with a claim?

An employer served with an unfair dismissal claim must lodge Form F3 within 7 days and send a copy to the employee. The response states any jurisdictional objection, the reason for the dismissal and why the employer says it was fair.

Employers usually gather these documents first:

The employment contract and the applicable award or enterprise agreement.
Warning letters, performance plans and meeting notes.
Records showing the employee was told the reason and given a chance to respond.
For small businesses, a completed Small Business Fair Dismissal Code checklist.
For redundancies, evidence of consultation and of redeployment options considered.

Questions most guides do not answer

Can you claim unfair dismissal while on probation?

The probation label does not decide eligibility. The minimum employment period does. An employee dismissed at 4 months in a 6-month probation cannot claim unfair dismissal, but an employee with a 12-month probation dismissed at 8 months by an employer with 15 or more employees generally can.

Does signing a deed of release end your claim?

Usually, yes. A deed of release signed in exchange for a payment normally releases the employer from the unfair dismissal claim and other claims arising from the employment. A lawyer can check the release terms before you sign.

Can you still claim if you found a new job?

Yes. A new job does not end the claim, but pay earned in the new job is taken into account under section 392(2) and reduces the compensation.

Do you need a lawyer for unfair dismissal?

Many applicants lodge Form F2 and attend conciliation without a lawyer. Legal help is most useful when:

The employer raises a jurisdictional objection, such as genuine redundancy or high income.
It is unclear whether unfair dismissal or a general protections claim fits better.
A deed of release or settlement offer is on the table.
The matter is going to a hearing.
You are the employer responding to the claim.

Under section 596, a lawyer or paid agent needs the Commission's permission to represent a party at a conference or hearing.

How much does an unfair dismissal lawyer cost?

An unfair dismissal lawyer typically charges around $1,500 to $5,000 for advice, lodgement and conciliation on a fixed fee, and around $10,000 to $30,000 or more if the matter runs to a hearing. These ranges are indicative as at September 2026 and vary with the firm and the complexity of the matter. Some firms act on no win, no fee terms for employees.

Compare employment lawyers for an unfair dismissal claim

Compare employment lawyers by fixed-fee conciliation packages, no win, no fee terms and public review records, and send an enquiry before your 21 days run out. The Employment Lawyers in Australia rankings compare firms in each city, including Employment Lawyers in Sydney, Employment Lawyers in Melbourne, Employment Lawyers in Brisbane, Employment Lawyers in Perth and Employment Lawyers in Adelaide. Firms offering conditional fee arrangements are listed in No Win No Fee Lawyers in Australia. If the dismissal was for a discriminatory or other unlawful reason, read the guide to General Protections Claims before lodging.