You normally have 21 calendar days from the date your dismissal takes effect to lodge an unfair dismissal application with the Fair Work Commission.

To qualify, you’ll generally need to meet minimum employment, income or award coverage requirements. For dismissals taking effect from 1 July 2026, the high-income threshold is $190,100 and the maximum compensation is the lower of your previous 26 weeks’ remuneration or $95,050.

Bark gives Australians access to more than 200 employment lawyers, so you can compare relevant experience and request free quotes before the deadline approaches.

Find an employment lawyer through Bark if you need help assessing your eligibility or deciding which type of claim fits your circumstances.

Even where a dismissal feels unfair, whether it was legally unfair depends on factors such as your length of service, employment status, earnings, employer size and the reason your employment ended.

This article provides general information rather than legal advice. Employment law turns on the specific facts, so seek advice promptly where you’re unsure.

What counts as unfair dismissal in Australia?

The grounds for unfair dismissal centre on whether the Fair Work Commission considers the dismissal to have been harsh, unjust or unreasonable.

The Commission must also be satisfied that the dismissal wasn’t a genuine redundancy. If the employer is a small business, it will consider whether the dismissal followed the Small Business Fair Dismissal Code.

When deciding whether a dismissal was unfair, the Commission can consider:

• Whether there was a valid reason involving conduct or capacity
• If the employee was told why they were being dismissed
• Whether they had a genuine opportunity to respond
• Any unreasonable refusal to allow a support person
• Previous warnings about unsatisfactory performance
• The size of the business and its access to HR expertise
• Any other circumstances relevant to the case

A genuine workplace concern doesn’t necessarily make the dismissal fair if the process was seriously flawed.

For example, an employer might have valid concerns about performance. However, deciding the outcome in advance and dismissing the employee without hearing their response can contribute to a finding of unfairness.

Potential warning signs include:

• Dismissal for performance without earlier concerns or warnings
• No reasonable opportunity to respond to allegations
• Rules being enforced selectively against one employee
• A disciplinary procedure being ignored without explanation
• Alleged serious misconduct being accepted without proper investigation
• A redundancy where the role still exists or redeployment wasn’t considered

A dismissal involving discrimination, workplace rights, complaints, protected leave or another prohibited reason may instead support a general protections or unlawful termination claim.

These are separate legal pathways. You’ll usually need to choose the claim that best fits the circumstances because multiple Fair Work dismissal applications generally can’t be pursued over the same termination.

Am I eligible to make an unfair dismissal claim?

You must fall within Australia’s national unfair dismissal system and satisfy the relevant eligibility rules.

In broad terms, you’ll usually need to:

• Be an employee rather than a genuine independent contractor
• Have been dismissed by your employer or effectively forced to resign
• Complete the minimum employment period
• Earn below the threshold or have award or enterprise agreement coverage
• Lodge your application within 21 calendar days
• Show that the dismissal wasn’t a genuine redundancy
• Meet any other coverage rules applying to your employment

Some state public-sector and local-government employees fall under state workplace relations systems instead.

Employment status can also be disputed, particularly where someone has been described as a contractor despite working under arrangements that resemble employment.

Unfair dismissal eligibility by employer size

The high-income threshold is $190,100 for dismissals taking effect from 1 July 2026. It applies to employees who aren’t covered by an award or enterprise agreement.

A small business generally has fewer than 15 employees. The headcount can include employees of associated entities and casual employees working on a regular and systematic basis.

Regular casual service can count towards the qualifying period where there was a reasonable expectation of ongoing employment.

A transfer of business can also affect how service is calculated. Seek advice if your employment history or status places you close to an eligibility threshold.

Can I be unfairly dismissed during probation?

Possibly. A probation clause in an employment contract doesn’t replace the minimum employment period under the Fair Work Act.

At a business with 15 or more employees, unfair dismissal protection generally begins after six months. At a business with fewer than 15 employees, the qualifying period is usually 12 months.

For example:

• An employee dismissed in month seven by a company with 20 employees may have completed the qualifying period
• Someone dismissed in month seven by a business with 10 employees generally won’t have completed the required 12 months

Employees who haven’t reached the qualifying period can still have other rights. These may include notice, final pay and protection from dismissal for discriminatory or prohibited reasons.

How long do I have to make an unfair dismissal claim?

Your application must normally reach the Fair Work Commission within 21 calendar days after the dismissal takes effect.

This isn’t 21 business days. The dismissal often takes effect on the final day of employment, although notice arrangements and the wording of the termination can affect the precise date.

The Commission can extend the deadline only in exceptional circumstances. It may consider:

• Why the application was late
• When you became aware of the dismissal
• Steps already taken to challenge it
• Any prejudice to the employer
• The apparent merits of the claim
• Fairness compared with similar cases

Serious illness or genuinely misleading information can be relevant, but an extension isn’t automatic.

The Fair Work Commission application fee for 2026–27 is $92.70. You can apply for a waiver if paying it would cause serious financial hardship.

Gather your basic records and seek advice early. Don’t wait until every piece of evidence has been collected before checking whether you need to lodge.

What is the difference between unfair dismissal and wrongful termination?

Unfair dismissal concerns whether a protected employee’s dismissal was harsh, unjust or unreasonable. Applications are generally made to the Fair Work Commission.

“Wrongful termination” isn’t usually the name of a single Fair Work Commission claim in Australia. The term is often used informally for a breach of contract, such as failing to provide the notice or termination procedure promised in an employment agreement.

A contractual termination dispute may need to be pursued through a court or another dispute process. Bark’s guide to lawyer costs in Australia explains common billing structures where separate contractual advice is needed.

“Unlawful termination” has a more specific workplace-law meaning. It can involve dismissal for a prohibited reason, such as union activity, certain protected attributes, a protected temporary absence or making a workplace complaint.

Unfair dismissal, wrongful termination and related claims

More than one legal issue can arise from the same termination. However, you’ll generally need to identify the correct dismissal pathway before lodging.

What is constructive dismissal?

Constructive dismissal, sometimes called forced resignation, arises where an employee resigns but says their employer’s conduct left them with no real choice.

Being unhappy at work or disagreeing with a management decision won’t be enough by itself. The Commission considers what the employer did and whether that conduct brought the employment relationship to an end.

Relevant circumstances can include:

• A major and unjustified reduction in pay
• Significant duties being changed without agreement
• Demotion without contractual authority
• Pressure to resign under threat of dismissal
• Serious workplace conduct the employer refuses to address
• A fundamental breach of the employment agreement

These situations don’t automatically establish constructive dismissal. The contract, sequence of events and way the employee responded will all matter.

The same 21-day deadline commonly applies from the date the resignation takes effect. Get advice before resigning where possible because a voluntary resignation can make it harder to establish that a dismissal occurred.

Where repeated unreasonable conduct is involved, Bark’s guide to workplace bullying in Australia explains how bullying is treated separately.

What can I receive if I win an unfair dismissal case?

The Fair Work Commission can order:

• Reinstatement
• Compensation where reinstatement isn’t appropriate
• Continuity of employment
• Restoration of pay linked to reinstatement

Reinstatement is the primary remedy under the legislation, so the Commission must consider whether it’s appropriate before awarding compensation.

Compensation isn’t automatic. It usually reflects lost remuneration and isn’t intended to compensate for humiliation, distress or hurt feelings.

Unfair dismissal remedies from 1 July 2026

For dismissals on or after 1 July 2026, compensation is capped at 26 weeks’ remuneration or $95,050, whichever is lower.

Conciliation is an informal and voluntary process intended to help both sides resolve the dispute without a formal hearing. Any settlement must be agreed by the employee and employer.

How much compensation could I receive?

There’s no standard unfair dismissal payout.

The Commission can consider:

• Income you would probably have earned without the dismissal
• Money earned from another job afterwards
• Steps you took to look for work and limit your losses
• Misconduct that contributed to the dismissal
• The effect of compensation on the employer
• Your length of service
• Other relevant circumstances

The statutory cap is a maximum, not an estimate of the likely outcome.

Privately negotiated settlements can also include non-financial terms such as:

• An agreed statement of service
• A change to the recorded reason for departure
• Payment of outstanding entitlements
• Confidentiality provisions
• Mutual non-disparagement terms
• Return of workplace property

No universal average can reliably predict the value of an individual case. The likely outcome will depend on lost income, eligibility, the strength of the evidence and the terms each side is prepared to accept.

Do I need a lawyer for an unfair dismissal claim?

You don’t need a lawyer to lodge an application. Individuals can begin and manage an unfair dismissal matter themselves.

Legal advice can be particularly useful in three areas.

Eligibility and coverage questions

Consider seeking advice where:

• Your status as an employee is disputed
• Your earnings are close to or above the high-income threshold
• Award or enterprise agreement coverage is unclear

Contested dismissal issues

Support can help when:

• The employer alleges serious misconduct
• Genuine redundancy is being argued
• The Small Business Fair Dismissal Code is involved
• Your resignation could amount to constructive dismissal

Alternative claims and settlement

Advice may also be worthwhile where:

• General protections or discrimination could provide a stronger claim
• Contractual notice, commissions or bonuses are disputed
• You need help valuing or negotiating a settlement

People usually pay their own legal costs in Fair Work Commission proceedings. Costs can be ordered in limited situations, including where a case was pursued without reasonable cause or had no reasonable prospect of success.

A lawyer may need permission to represent someone during certain Commission conferences or hearings. They can still advise on strategy, prepare documents and negotiate a settlement without appearing at every stage.

Paying for legal support doesn’t guarantee a higher settlement. Its value lies in identifying the right claim, presenting the facts clearly and helping you make informed decisions.

How much does an employment lawyer cost?

The price will reflect the lawyer’s experience, the work required and whether you need one-off advice or representation through conciliation.

An initial consultation commonly costs $283.50 to $690 including GST, with a typical appointment sitting around $450 including GST.

Fixed-fee support through conciliation ranges from about $850 to $3,500 plus GST, with many straightforward services costing approximately $2,000 plus GST.

Indicative employment lawyer fees

These figures are general market estimates rather than fixed Bark rates.

Before engaging a lawyer, ask:

• Whether GST is included
• Which documents will be reviewed
• If lodging the application is covered
• Whether conciliation attendance is included
• What happens if the claim reaches a hearing
• Whether barrister or expert costs could arise
• If fixed-fee or unbundled advice is available

The employment lawyer cost guide provides a fuller breakdown of hourly rates, consultations and fixed-fee support.

What if I work for a small business?

Different unfair dismissal rules apply when an employer has fewer than 15 employees. In most cases, you must have worked there for at least 12 months before you can make an unfair dismissal claim.

The Fair Work Commission will also consider whether the employer followed the Small Business Fair Dismissal Code. This allows for immediate dismissal in cases of serious misconduct, but other performance or conduct issues should generally be handled through a fair warning and a reasonable opportunity to improve or respond.

Where the employer has followed the Code, the dismissal may be treated as fair. However, small businesses are not exempt from wider workplace laws, so issues involving discrimination, general protections, unpaid wages, notice or contractual entitlements may still apply.

Employers can seek help from an HR consultant to strengthen their dismissal process and documentation. Employees who are unsure whether their rights have been breached should consider independent legal or union advice.

What should I do after being dismissed?

Act promptly, but avoid sending angry or accusatory messages that could make the dispute harder to resolve.

Confirm when the dismissal took effect

Check the termination letter, last day of employment and any notice arrangements.

The 21-day period generally begins when the employment relationship ends, not necessarily when the dismissal meeting took place.

Write a clear timeline

Record the employment background:

• When you started
• Your job title and employment status
• Any relevant reviews or warnings
• Important events before the dismissal

Then note the termination itself:

• What was said during meetings
• Who attended
• How and when you were informed
• Your final day of employment

Do this while the details are still fresh.

Preserve relevant evidence

Keep lawful copies of employment records such as:

• Your contract
• Workplace policies
• Warning letters
• Performance reviews
• Payslips

You should also retain dismissal-related documents, including:

• Relevant emails or messages
• Meeting notes
• The termination letter
• Award or enterprise agreement information

Don’t take confidential business information or records you aren’t entitled to possess.

Check your final entitlements

Review whether your final pay includes:

• Outstanding wages
• Notice or payment in lieu
• Accrued annual leave
• Long-service leave where applicable
• Redundancy pay where applicable
• Superannuation
• Contractual commissions or bonuses

The Bark legal and financial FAQs also cover common questions involving underpayment, employment disputes and legal costs.

Identify the correct claim

A dismissal can involve unfair dismissal, general protections, discrimination, breach of contract or underpayment.

The eligibility rules, deadlines and available remedies aren’t the same, so don’t assume an unfair dismissal application is automatically the right pathway.

Seek advice early

You can contact an employment lawyer, union, community legal centre or the Fair Work Commission’s Workplace Advice Service where eligible.

You can lodge an application yourself, but don’t allow the 21-day deadline to pass while waiting for an appointment.

What if I was dismissed while sick or injured?

An employee can’t lawfully be dismissed simply because of a protected temporary absence caused by illness or injury.

Protection can apply where the absence is supported by appropriate evidence. Other rights may arise under general protections, discrimination, workers’ compensation and state or territory legislation.

This doesn’t mean employment can never be terminated where an employee has a long-term health condition.

Relevant considerations can include:

• The length of the absence
• Ability to perform the inherent requirements of the role
• Whether reasonable adjustments are available
• Workers’ compensation protections
• Medical evidence
• The reason and process used for dismissal

Several legal regimes can overlap, so obtain advice quickly where your health, injury or workers’ compensation claim was connected to the termination.

Does redundancy count as unfair dismissal?

A genuine redundancy isn’t an unfair dismissal.

A redundancy is generally genuine where:

• The employer no longer needs anyone to perform the job
• Required award or enterprise agreement consultation took place
• Reasonable redeployment wasn’t available within the business or an associated entity

A redundancy can be challenged where:

• The same role continues under a new title
• Another person is hired to do substantially the same job
• Required consultation didn’t happen
• Reasonable redeployment options were ignored
• Redundancy was used to hide another reason for dismissal

A flawed selection process won’t automatically make a redundancy non-genuine. It can, however, become relevant to another claim if the employee was chosen for a prohibited or discriminatory reason.

The Fair Work Commission says an employee may be able to make an unfair dismissal claim where a redundancy wasn’t genuine. A general protections claim may apply where the employee was selected for a prohibited reason.

What should you do next?

Start by confirming the date your employment ended and calculating the 21-day deadline.

Your rights depend on more than whether the dismissal felt unfair. Length of service, employer size, income, award coverage, employment status and the reason for dismissal can all affect whether you qualify.

Gather your records and identify the legal pathway that best fits what happened.

When you’re ready to seek advice, compare lawyers on Bark, review their relevant employment law experience and request free, no-obligation quotes.