Unfair Dismissal in Australia: Eligibility and the Fair Work Commission Process

Under the Fair Work Act 2009 (Cth), a dismissal in Australia is "unfair" if it was harsh, unjust, or unreasonable. Unlike a breach-of-contract claim, unfair dismissal is a statutory right enforced through the Fair Work Commission (FWC), Australia's national workplace tribunal — and it comes with strict eligibility rules and one of the shortest filing deadlines in employment law anywhere: 21 calendar days.

What Makes a Dismissal "Unfair"

The Fair Work Commission assesses whether a dismissal was harsh, unjust, or unreasonable by weighing factors set out in the Fair Work Act, including whether there was a valid reason related to the person's capacity or conduct, whether they were notified of that reason and given a chance to respond, and whether the process was otherwise reasonable given the size and resources of the employer. A dismissal can be found unfair because of a flawed process even where the underlying reason had some merit.

Eligibility: Who Can Apply

Not every dismissed employee can bring an unfair dismissal claim. Three gates generally apply together:

• Minimum employment period: 6 months of continuous service for most employers, or 12 months if the employer is a small business (fewer than 15 employees).
• Income or award coverage: you must earn less than the high income threshold, or be covered by a modern award, or have an enterprise agreement apply to your employment.
• Employment type: certain categories, such as some casual employees without a regular pattern of work, and contractors who are genuinely independent rather than employees, are generally excluded.

The high income threshold is indexed annually on 1 July. For dismissals on or after 1 July 2026, it is $190,100, with the compensation cap for a successful claim set at half that figure. Because this number changes every year, confirm the threshold applicable on your actual dismissal date directly with the Fair Work Commission rather than relying on a figure from a prior year.

The 21-Day Deadline

An unfair dismissal application must be lodged with the Fair Work Commission within 21 calendar days after the dismissal takes effect. This is one of the strictest deadlines in Australian law — the Commission may only extend it in exceptional circumstances, and missing it is one of the most common reasons a genuinely strong case never gets heard. If you are considering a claim, treat the 21-day clock as the first and most urgent fact to establish, before assessing the merits of the case itself.

How the Process Works

1. Lodge the application: file with the Fair Work Commission within the 21-day window, identifying the dismissal and the outcome sought.
2. Conciliation: the Commission typically arranges an informal, confidential conciliation conference, where most matters are resolved by agreement without a hearing.
3. Hearing (if unresolved): if conciliation doesn't resolve the matter, it proceeds to a formal hearing before a Commission member, who hears evidence from both sides and issues a binding decision.
4. Remedy: if the claim succeeds, the Commission can order reinstatement or, more commonly in practice, compensation — capped at the lower of 26 weeks' pay or half the high income threshold at the time of dismissal.

Sources & Further Reading

• Fair Work Act 2009 (Cth), particularly ss. 382, 385, 392, and 394 — eligibility, the meaning of unfair dismissal, remedies, and the application deadline
• Fair Work Commission (fwc.gov.au) — official unfair dismissal guidance and current high income threshold figures
• Fair Work Ombudsman (fairwork.gov.au) — general employee-facing guidance on ending employment

Practical Next Steps

If you've just been dismissed and think it may have been unfair, calculate your 21-day deadline first — it runs from the date the dismissal took effect, not from your last physical day at work in every case, so confirm the exact trigger date. From there, check your length of service against the minimum employment period and your earnings against the current high income threshold before assessing the substance of your case. For the general, worldwide picture of what makes a dismissal unlawful, see When Is a Dismissal Considered Wrongful Termination?

This article is general legal information, not legal advice. Figures such as the high income threshold are indexed annually — confirm the current amount with the Fair Work Commission, and consult an Australian employment lawyer for advice on your specific situation.