Unfair dismissal — do you have a case?

First: the deadline

The Commission can extend the deadline, but only in exceptional circumstances — and that bar is genuinely high. Not knowing the time limit existed has never, on its own, been treated as exceptional.

Are you eligible? Three gates before anyone looks at fairness

This is the part that surprises people. Before the Commission considers whether your dismissal was unfair, you have to clear three jurisdictional gates. If you fail any one of them, the merits of your case are never examined — however badly you were treated.

Gate 1 — Were you actually dismissed?

Dismissal means the employment ended at the employer's initiative. That includes being sacked outright. It also includes being forced to resign — where the employer's conduct left you no real choice. A genuine resignation is not a dismissal, and neither is the ordinary end of a fixed-term contract.

Gate 2 — Have you been there long enough?

The headcount includes regular casuals, and associated entities are counted as one employer — so a business that feels small may not be. Getting this wrong in either direction is common, and it silently doubles or halves the period you need.

Gate 3 — Are you covered?

You need one of the following: a modern award covers your job, an enterprise agreement applies to you, or you earn less than the high income threshold. The threshold is $190,100 a year from 1 July 2026. It is indexed on 1 July each year, so confirm the current figure on the Fair Work Commission website before you rely on it.

What makes a dismissal unfair

If you clear the gates, the Commission asks whether the dismissal was harsh, unjust or unreasonable. It works through a list of criteria, and it weighs them together — there is no single knockout factor.

Was there a valid reason?

A valid reason must be sound, defensible and well founded — not capricious, fanciful, spiteful or prejudiced. Two things follow from that, and they cut in both directions:

• The employer can't just rely on believing you did it. The Commission makes its own finding, on the evidence, about whether the conduct actually happened.
• The Commission won't substitute its own judgement either. It is not asking what it would have done in the employer's chair. A reason can be valid even if another employer would have been more lenient.

Serious misconduct is always enough to be a valid reason. It is never necessary — plenty of valid reasons fall well short of misconduct, including genuine performance problems.

Was the process fair?

This is where a great many employers come unstuck, and it is the most common reason an otherwise defensible dismissal is found unfair. The Commission considers whether you were:

• told the reason for the dismissal, in terms you could understand
• given a real opportunity to respond to it — before the decision was made, not after
• allowed a support person, if you asked for one
• warned about poor performance, where performance was the reason
• affected by the employer's size or lack of dedicated HR expertise — a small business is held to a more practical standard, but not to no standard at all

Was it a genuine redundancy?

If it was, you cannot bring an unfair dismissal claim. But "genuine" has a specific meaning, and three things must all be true: the job (not the person) is genuinely no longer required, the employer consulted as any applicable award or agreement required, and there was no reasonable redeployment available anywhere in the business or an associated entity.

Failing the consultation step alone is enough to lose the protection. Redundancies are challenged successfully on that basis regularly.

What you can actually get

Reinstatement is the primary remedy — the law's starting position is that you get your job back. Compensation is only ordered where the Commission is satisfied on two separate points: that reinstatement is inappropriate, and that compensation is appropriate in the circumstances.

In practice reinstatement is rare. Employers usually argue that trust and confidence have broken down — though that has to be soundly based, not just asserted from the bar table.

How compensation is calculated

There is a structured formula. In outline, the Commission estimates what you would have earned had you not been dismissed, deducts what you have earned since and are likely to earn, discounts for contingencies, reduces the figure if your own misconduct contributed, and then applies a statutory cap.

• The cap is the lesser of six months' pay or half the high income threshold — $95,050 from 1 July 2026. Both move on 1 July each year, so check the current figures.
• You cannot be compensated for hurt, humiliation or distress. This is the single biggest mismatch between what people expect and what the law provides. Compensation is for lost earnings, and nothing else.
• Your duty to look for other work matters. What you earned, or reasonably could have earned, comes off the figure.

What happens after you apply

1. You lodge a Form F2 with the Fair Work Commission, within 21 days.
2. The employer responds (Form F3), usually within seven days, and may raise jurisdictional objections.
3. Conciliation — a private, informal phone conference with a Commission conciliator. Most matters end here.
4. If it doesn't settle, the matter goes to a conference or hearing before a Member, who decides it.
5. Decision and remedy, if you succeed.

The great majority of applications never reach a hearing. Conciliation is where most outcomes are actually produced, which is why preparing properly for that conversation matters far more than most people realise.

The most common mistakes

• Missing the 21 days. By far the most frequent way a good case dies.
• Choosing the wrong claim. Unfair dismissal is not the only option, and it is sometimes the wrong one — being sacked for a prohibited reason is a general protections claim, with different rules and a different deadline.
• Expecting damages for distress. Compensation covers lost earnings only.
• Resigning first. A resignation can end your ability to claim unless you can show you were forced into it, which is a harder case to run.
• Going quiet at conciliation. Turning up unprepared to the one step where most matters resolve is the cheapest mistake to avoid.