Unfair Dismissal Lawyers

Our guide to unfair dismissal under the Fair Work Act: who can claim, the 21-day deadline, what the Fair Work Commission looks at, how the process runs and what you can get. We also explain general protections, the other main dismissal claim.

Dismissed Unfairly or About To – Know Everything About Unfair Dismissals

Unfair dismissal laws protect employees from having their jobs ended in a way that is “harsh, unjust or unreasonable”. The rules are in Part 3-2 of the Fair Work Act 2009 (Cth), and claims are made to the Fair Work Commission. MKI Legal are experienced unfair dismissal lawyers in Perth, and our workplace lawyers have advised on thousands of claims.

The short version:

You have 21 days from the day your dismissal took effect to lodge your claim. This is the one thing you cannot fix later.

You need to have worked for your employer for at least 6 months, or 12 months if the business had fewer than 15 employees.

You need to be covered by an award or enterprise agreement, or earn less than the high income threshold, which is $190,100 a year for dismissals from 1 July 2026 (superannuation is not counted).

The Commission looks at whether there was a valid reason, whether you were told about it and given a real chance to respond, and everything else that bears on fairness.

If you win, the main remedy is getting your job back. If that is not appropriate, compensation is capped at the lesser of 26 weeks’ pay and $95,050 for dismissals from 1 July 2026.

Below we go through each of these in detail, and then explain the general protections claim, which has no minimum period, no income limit and no cap on compensation.

You Are Not Alone

We wrote this guide to give employees as much useful information as we can, so you know your legal rights. If you have been dismissed, forced to resign, or you think it may happen soon, we understand that things may be difficult right now.

You may be angry and confused. You may have a lot of questions. You may be wondering how you’re going to pay the bills, the mortgage or the rent. You may also be worried about what people at work think and how you tell your friends and family that you lost your job.

It’s important to remember that you are not alone. A lot of people have gone through this awful process of losing a job and have come through it okay. Knowing where you stand is the first step.

Yes, You Have Rights!

It’s important to find out whether your dismissal was fair and lawful, and what your options are. There are two main claims for employees who have been sacked. The first is an unfair dismissal claim. The second is a general protections claim, which many people have never heard of. You generally have to choose one of them, so it matters which you start with.

Both claims are available to employees in the national system under the Fair Work Act, which covers most employees in Australia. In Western Australia, you are in the national system if your employer is a trading or financial corporation, which covers almost every Pty Ltd company and many incorporated not-for-profits that trade. See the Commission’s page on who the national system covers.

WA did not hand its private-sector workplace laws to the Commonwealth, so some WA employees are in the WA state system instead: people employed by sole traders, partnerships and trusts with individual trustees, WA government departments and agencies, and, since 1 January 2023, WA local governments (shires, towns and cities). If that is you, a different Act and a different tribunal apply, with a 28-day time limit and no minimum employment period. See am I covered? and our guide to unfair dismissal in the WA state system.

21-Day Deadline (Strict Time Limits Apply)

For national system employees, you have 21 days to lodge either an unfair dismissal claim or a general protections claim involving dismissal with the Fair Work Commission (s 394(2) and s 366(1) of the Fair Work Act).

The 21 days run from the day your dismissal took effect, not from the day you got your final pay or a letter. A dismissal takes effect when it is communicated to you. If you were paid in lieu of notice, that is usually straight away. If you are working out a notice period, it is usually the last day of that notice. The days are calendar days, and weekends count.

If you miss the deadline, the Commission can accept a late claim only if there are exceptional circumstances. It looks at the reason for the delay, whether you disputed the dismissal in the meantime, whether you only found out about the dismissal after it took effect, any prejudice to the employer, the merits of your claim, and fairness compared with other people in your position (s 394(3)). Late claims are often refused, so do not rely on an extension.

If you are unsure of your date, or think you might already be late, call us straight away.

21-Day Deadline (Strict Time Limits Apply)

First, Let’s Discuss How Unfair Dismissal Works

Let’s start with unfair dismissal (general protections is explained further down). Not everyone can make an unfair dismissal claim. The Commission must first be satisfied of some threshold questions (s 396), before it looks at whether the dismissal was fair.

Here are the requirements to be eligible for an unfair dismissal claim:

You must be a national system employee: full-time, part-time, or a casual who worked as a regular casual employee. Genuine contractors cannot claim, but a “contractor” label does not decide it (see below).

You must have completed the minimum employment period: 6 months, or 12 months with a small business employer.

You must be covered by an award or enterprise agreement, or earn less than the high income threshold.

You must have been dismissed, which includes being forced to resign.

The dismissal must not be a genuine redundancy, and if your employer is a small business, it must not have complied with the Small Business Fair Dismissal Code.

Employee or Contractor?

Since 26 August 2024, whether you are an employee under the Fair Work Act is decided by the “real substance, practical reality and true nature” of the relationship, looking at how the contract was actually performed and not just what it says (s 15AA). If you had an ABN and invoiced the business but in reality worked like an employee, you may still be able to claim. See our page on contractor issues.

Minimum Employment Period

You must have worked for your employer for at least the minimum employment period (s 383), counted up to the earlier of when you were given notice and when you were dismissed.

If your employer had 15 or more employees, the minimum period is six months.

If your employer had fewer than 15 employees (a small business employer), the minimum period is 12 months.

Employees are counted by headcount, not full-time equivalents. You are counted, and so is anyone else being dismissed at the same time. Casuals are counted only if they are regular casual employees, and employees of associated entities (for example related companies) are counted as one business (s 23).

Time you worked as a casual counts toward your own minimum period only if you were a regular casual employee with a reasonable expectation of continuing work on a regular and systematic basis (s 384). If you are short of the minimum period, you may still have a general protections claim, which has no minimum period at all.

Award, Agreement or Income

You can claim if you were covered by a modern award or an enterprise agreement, however much you earned. If you were not covered by either, you can claim only if your annual earnings were below the high income threshold (s 382(b)).

$190,100 for dismissals on or after 1 July 2026 (2026-27)

$183,100 for dismissals in 2025-26

$175,000 for dismissals in 2024-25

The figure that applies is the one in force on the day you were dismissed. Superannuation is not counted, but some other benefits can be. The Commission publishes the current figure on its high income threshold page. If you earned more and were not covered by an award or agreement, you cannot claim unfair dismissal, but you may be able to bring a general protections claim or a contract claim.

Were You Dismissed?

You have been dismissed if your employment was ended on your employer’s initiative, or if you resigned because you were forced to by your employer’s conduct or course of conduct (s 386(1)). You have not been dismissed if a genuine fixed-term contract simply ran to its end, or if you were demoted without a significant cut in pay or duties and kept working for the same employer (s 386(2)). See our page on resigning or being forced to resign.

It Cannot Be a Genuine Redundancy

An unfair dismissal claim cannot succeed if the dismissal was a genuine redundancy (s 389). If you were not made redundant, this does not apply to you. A redundancy is genuine only if all of these are true:

your employer no longer required your job to be done by anyone because of changes in the operational requirements of the business;

your employer complied with any obligation in an award or enterprise agreement to consult about the redundancy; and

it would not have been reasonable in all the circumstances to redeploy you within the business or an associated entity.

On redeployment, the Commission looks at things like the nature of any available role, the qualifications it needs, your skills and experience, where it is located and what it pays (Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578). In 2025 the High Court confirmed that the question is what was reasonable within the employer’s real business as it stood at the time, which can include work being done by contractors or labour hire in some circumstances (Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29).

If any one of the three requirements is missing, the redundancy is not a genuine redundancy and your claim can go on to the question of fairness. See our redundancy page.

Small Business Fair Dismissal Code

If your employer had fewer than 15 employees, the dismissal is not unfair if the employer complied with the Small Business Fair Dismissal Code (s 388). Under the Code, an employer can dismiss without notice or warning where it believes on reasonable grounds that the employee’s conduct was serious enough to justify immediate dismissal, such as theft, fraud, violence or a serious breach of safety procedures. For other dismissals, the employer must give a valid reason based on conduct or capacity, warn the employee that their job is at risk, give them a real chance to respond, and give them a reasonable chance to fix the problem. The Commission’s benchbook page on the Code explains how it is applied, including Pinawin v Domingo [2012] FWAFB 1359.

What Makes A Dismissal Unfair?

If you are eligible, the Commission decides whether your dismissal was harsh, unjust or unreasonable. It must take into account every one of the matters in s 387 of the Fair Work Act:

whether there was a valid reason for the dismissal related to your capacity or conduct, including its effect on the safety and welfare of other employees;

whether you were notified of that reason;

whether you were given an opportunity to respond to it;

any unreasonable refusal by your employer to let you have a support person present at discussions relating to your dismissal;

if the dismissal was for unsatisfactory performance, whether you had been warned about it first;

how the size of the business was likely to affect the procedures it followed;

whether the absence of dedicated human resources staff was likely to affect those procedures; and

any other matters the Commission considers relevant, such as your length of service, your work record, the effect of the dismissal on you, and whether others were treated differently for the same conduct.

A valid reason is one that is “sound, defensible or well founded”, not “capricious, fanciful, spiteful or prejudiced” (Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333). Where the reason is misconduct, the Commission decides for itself whether the conduct happened, rather than asking only whether the employer believed it did. The High Court has described a dismissal as potentially harsh because of its consequences for the employee, unjust because the employee was not guilty of the conduct, and unreasonable because it was decided on inferences that could not reasonably have been drawn (Byrne v Australian Airlines Ltd [1995] HCA 24).

These are matters to weigh, not a checklist. A missing step does not automatically make a dismissal unfair, and a perfect process does not save a dismissal with no good reason. The Commission’s Unfair Dismissals Benchbook sets out how each factor is applied.

How Your Dismissal Could Be Unfair

Here are some common situations where the s 387 factors can point toward unfairness. This is not a complete list, and every case turns on its own facts.

1. If You Were Made Redundant

Your claim can go ahead if the redundancy was not a genuine redundancy (explained above). Common problems are:

your job still needs to be done by someone;

there was another job in the business, or a related business, that it would have been reasonable to offer you; or

your award or enterprise agreement required your employer to consult with you before deciding, and it did not.

2. If You Were Dismissed For Doing Something Wrong

If you were dismissed for misconduct, these matters can count against the fairness of the dismissal:

you did not do what you were accused of, or the evidence does not support it;

what you did was not serious enough to justify dismissal, and a warning would have been the proportionate response;

other people did the same thing and were not dismissed; or

you did not know, and could not reasonably have known, that the conduct could cost you your job, for example because no policy or instruction covered it.

3. If You Were Dismissed Because Of The Way You Performed Your Job

If you were dismissed for poor performance, the Commission looks at whether you were warned about the specific problem and told your job was at risk, and whether you had a fair chance to improve. It can count against the employer if:

you were not given proper training or resources;

the concerns were never explained to you clearly, or you were not warned first;

you were not given a reasonable time to improve; or

the criticism of your performance was wrong.

See our page on performance management.

4. If It Was Said You Could Not Do Your Job Because Of Illness Or Injury

The law calls this being unable to perform the inherent requirements of the job. The question is whether you could do the essential parts of the role, now or in the foreseeable future, with reasonable adjustments. The employer should have up-to-date medical evidence and give you a chance to respond to it. Dismissing someone because they are temporarily absent from work because of illness or injury is also unlawful under the general protections (s 352). The Fair Work Regulations set out when an absence counts as temporary, including rules about medical certificates and how long the absence has lasted, so get advice on how your absences are counted.

5. If You Weren’t Given a Chance to Have Your Say

Before deciding to dismiss you for conduct or performance, your employer should tell you the reason in clear terms and give you a real opportunity to respond, while the decision is still open. An “ambush” meeting, or a process where the outcome was already decided, counts against the employer. It does not automatically make the dismissal unfair, but it is a factor the Commission must weigh.

6. If You Asked For a Support Person But Were Refused

If you ask to have a support person at a meeting about possible dismissal and your employer unreasonably refuses, the Commission takes that into account (s 387(d)). Your employer does not have to offer one; you need to ask. A support person is there to support you and take notes, not to speak for you.

7. If You Were Dismissed For No Reason At All

If you were dismissed out of the blue with no reason given, the employer will have to show the Commission a valid reason related to your capacity or conduct, and explain why you were not told of it and given a chance to respond.

8. If You Were Forced To Resign

If your employer’s conduct left you no real choice but to resign, the law can treat that as a dismissal (s 386(1)(b)). It is not enough that you had good reason to be unhappy. The question is whether the employer intended to end the employment, or whether its conduct would probably have that result, leaving you no effective choice. This is decided objectively and is usually hard-fought, so get advice before you resign if you can. See resigning or being forced to resign.

If any of these apply to you and you meet the eligibility rules, contact us for a free discussion about what to do next.

Now, Let's Talk About General Protections Claims

A lot of people have heard of unfair dismissal, but there is another claim that can be just as good, or better, depending on the facts. It’s called a general protections claim. There is no minimum employment period and no income threshold, so it is available to many people who cannot claim unfair dismissal. The same 21-day deadline applies if you have been dismissed. From 7 July 2026, for a general protections claim it is enough to allege that you were dismissed, for example that you were forced to resign, to lodge Form F8. The Commission does not decide whether you were dismissed (s 368(1A)), but you still have to prove it if the case goes to court.

A general protections claim is about why you were dismissed. If a real reason for the dismissal was a reason the law prohibits, the dismissal is unlawful, even if your employer gave you a different reason such as redundancy, performance or misconduct. The prohibited reasons include:

1. Having or Exercising a Workplace Right

This includes making a complaint or inquiry about your employment (formal or informal, written or verbal), claiming an entitlement under an award, agreement or the Fair Work Act, taking or asking for leave, asking for flexible working arrangements, refusing unreasonable contact outside working hours under the right to disconnect, complaining to a body like the Fair Work Ombudsman, WorkSafe or the ATO, and taking part in a workplace process or proceeding.

2. Being Temporarily Absent Because of Illness or Injury

Subject to the rules in the regulations about what counts as a temporary absence (s 352).

3. A Protected Attribute

Your race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin (s 351). There are limited exceptions, for example where the action is based on the inherent requirements of the job.

4. Union Membership or Industrial Activity

Being or not being a union member, or taking part (or refusing to take part) in lawful industrial activity.

Who made the decision matters. The question is what was in the mind of the person who actually decided to dismiss you, so it helps to know who that was and what they knew. Read more on our general protections page.

How do I know what the true reason for my dismissal was?

A lot of people ask that question, and it’s a good one, because you can never truly know what your employer was thinking. The law helps you here. Under s 361 of the Fair Work Act, once you show that the adverse action happened (for example, you were dismissed) and that you had the workplace right or attribute you rely on, the law presumes that the employer acted for the prohibited reason. It is then up to the employer to prove that it did not.

In practice, that usually means the person who made the decision has to give evidence about their reasons, and the court has to believe them. The High Court has held that the question is the actual reasons of the decision-maker, and that the employer can discharge the onus with credible evidence of a different reason (Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41).

For example, if you complain about being bullied and are dismissed shortly afterwards, you can allege that the complaint was a reason for the dismissal. Your employer would then need to satisfy the court that the complaint was not a substantial and operative reason for its decision.

The prohibited reason does not have to be the only reason. If it was a substantial and operative reason among others, that is enough.

How do I know what the true reason for my dismissal was?

How Much Can I Get?

For Unfair Dismissal Claims

The main remedy is reinstatement, meaning your job back. The Commission can order compensation only if it is satisfied reinstatement is inappropriate (s 390(3)).

Compensation is capped at the lesser of:

the pay you received or were entitled to in the 26 weeks before your dismissal; and

half the high income threshold: $95,050 for dismissals on or after 1 July 2026 ($91,550 for dismissals in 2025-26).

In working out the amount, the Commission looks at what you would probably have earned if you had not been dismissed and how long the job would likely have lasted, what you have earned since, your efforts to find other work, your length of service, and the effect on the employer’s business (s 392(2)). It must reduce the amount if your misconduct contributed to the dismissal (s 392(3)). The usual method comes from Sprigg v Paul’s Licensed Festival Supermarket [1998] AIRC 989, restated in Bowden v Ottrey Homes Cobram and District Retirement Villages [2013] FWCFB 431.

Compensation in an unfair dismissal claim cannot include anything for shock, distress or humiliation caused by the way you were dismissed (s 392(4)).

For example, if you were out of work for three months and then found a job paying $1,000 a month less, the starting point might be three months of your old pay plus the shortfall for a further period, then adjusted for the matters above. How any payments you received on termination are treated is a point on which the Commission’s decisions differ, so ask us about your situation.

For General Protections Claims

There is no cap on compensation in a general protections claim. A court can order compensation for lost income, including the shortfall if you find a lower-paid job, and it can also award compensation for hurt, distress and humiliation. It can order reinstatement.

A court can also order the employer, and individuals involved in the contravention such as managers or directors (s 550), to pay a civil penalty, and it can order that a penalty be paid to you.

What about legal fees?

In the Fair Work Commission, each party generally pays its own costs (s 611). The Commission can order costs only in limited cases, such as a claim or response made vexatiously or without reasonable cause, or one that obviously had no reasonable prospect of success.

In court, costs are similarly limited: a party can be ordered to pay the other side’s costs only if it started the case vexatiously or without reasonable cause, or caused costs by an unreasonable act or omission (s 570). So the usual cost of a claim is your own legal fees, not your employer’s.

But how does compensation work in reality?

In reality, most claims settle. The Commission says about 3 in 4 unfair dismissal cases are resolved at conciliation, which is an informal, confidential meeting run by a Commission conciliator, usually by phone or video.

Because both sides make concessions to settle, a settlement is usually less than the maximum you could be awarded, but it comes much sooner, with certainty, and can include things money can’t buy (see below).

What Else Can I Get Besides Money?

Settlements often include terms beyond money. Common ones are:

Financial compensation.

A statement of service, to help you find a new job.

Confidentiality, so the circumstances of your dismissal are kept private.

The dismissal being recorded as a resignation, so you can say you resigned.

Non-disparagement terms, where the employer agrees not to say anything negative about you (and you agree the same).

We find that this is often a good way of resolving a dismissal claim and allows you to move on with your life. We explain every term to you before you sign, because a settlement usually releases all your claims about the employment.

How does the whole process work?

Unfair Dismissal Claims

Lodge Form F2 with the Fair Work Commission within 21 days of the dismissal taking effect. You can lodge online or use the Form F2. The application fee is $92.70 for 2026-27 ($89.70 in 2025-26), and it can be waived for serious financial hardship using Form F80.

The Commission sends your application to the employer, which is asked to lodge its response (Form F3) within 7 days.

If the employer raises a jurisdictional objection (for example, that you were not dismissed, were short of the minimum period, or it was a genuine redundancy), the Commission may hold a hearing on that point, usually after conciliation.

Conciliation: a voluntary, confidential meeting with a conciliator, usually online or by phone, and in most cases about five weeks after you apply. Its purpose is to help both sides reach a settlement. About 3 in 4 cases resolve at this stage.

If it does not settle, a Commission Member hears the case at a conference or formal hearing, usually months after the application, and decides whether the dismissal was unfair and what remedy to order.

An appeal to a Full Bench needs the Commission’s permission, which is granted only if it is in the public interest (s 400), and must be lodged within 21 days.

The Commission’s own page on the process for unfair dismissal claims walks through each step.

General Protections Claims

Lodge Form F8 with the Fair Work Commission within 21 days of the dismissal taking effect. The same fee applies. The employer responds within 7 days.

The Commission holds a conference to help the parties resolve the dispute. It does not decide who is right.

If the dispute does not resolve, the Commission issues a certificate. You then have 14 days from the date of the certificate to start proceedings in the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) (s 370). If both sides agree, the Commission can arbitrate the dispute instead (s 369).

In court, there is usually a further mediation before the case is set down for trial. Many cases settle at that stage.

If There Is No Settlement?

If a claim does not settle, you can decide whether to go on to a hearing or trial or to withdraw. The costs rules above mean the risk of paying the other side’s costs is limited, but it is not nil, so get advice at each stage about whether to continue.

What Sort of Evidence Do I Need?

We understand you may no longer have access to work emails or to former colleagues. That does not stop you. At the start, your own account of what happened is evidence, and it is enough to lodge a claim and go to conciliation.

Send us what you have. The things that help most are:

the exact date your employment ended (the 21 days run from it);

your contract, and your employer’s exact legal name and ABN (from a payslip or the contract);

the termination letter, email or message, and anything written about why. If you were told verbally, write down what was said, by whom and when, as soon as you can;

recent payslips;

any warnings, performance reviews, improvement plans, show cause letters or investigation findings;

notes of meetings and relevant emails or messages you are entitled to keep;

if redundancy was mentioned, anything about the restructure, any roles advertised since, and whether you were consulted; and

if you think the reason was a complaint, leave or something personal, the complaint or request itself and the dates.

If it turns out we need documents your employer holds, there are processes to obtain them. A gap in your documents is not a problem; a missed deadline is.

Can I Get My Job Back?

Yes, it is possible. In an unfair dismissal claim, reinstatement is the primary remedy under the Fair Work Act, and compensation is ordered only if reinstatement is inappropriate. The Commission can also order that you be paid for the pay you lost in between.

In practice, many people do not want to go back, and the Commission may find reinstatement inappropriate if trust between you and the employer has broken down. That is why most successful claims end in compensation or a settlement rather than a return to work.

If getting your job back is what matters most to you, tell us at the start, because it affects which claim to bring and how quickly to act.

Does My Dismissal Need to Be in Writing?

The Fair Work Act requires your employer to give you written notice of the day your employment ends (s 117). But a dismissal still happens, and still counts, if it was only said out loud or sent by text. If you were not given a termination letter, you can still lodge an unfair dismissal or general protections claim.

If you were dismissed verbally, write down straight away what was said, who said it and when. That note is evidence. You can also ask your employer to confirm the dismissal and the reason in writing.

I've Just Lost My Job – What Should I Do?

Things may be raw if you’ve lost your job recently. Here is what to do, in order:

Work out your 21-day deadline from the day the dismissal took effect, and put it in your calendar.

Don’t sign anything that releases your claims until you have had advice.

Write down what happened and gather the documents listed above.

Check your final pay, notice and leave.

Look for work. If you don’t try to find new work without a good reason, any compensation can be reduced.

Call us for a free discussion about whether you have an unfair dismissal or general protections claim, and which is better for you.

Our step-by-step guide, what to do if you’ve been dismissed, goes through each of these.

If there is a potential claim, you can meet one of our lawyers to go through it in detail. Contact us for a free discussion today. You have nothing to lose by making the call.