In Australia, an employee who thinks they were unfairly dismissed has 21 days from the dismissal to apply to the Fair Work Commission. To be eligible, they must have worked for the employer for at least 6 months (12 months for a small business) and be covered by an award or agreement or earn less than the high income threshold of $190,100, as of October 2026.
Unfair dismissal has a specific legal meaning: a dismissal that was harsh, unjust or unreasonable, wasn't a case of redundancy as the law defines it and, for a small business, didn't follow the Small Business Fair Dismissal Code. Here's how the rules work, from the Fair Work Ombudsman and Fair Work Commission pages as they read in October 2026.
Who can apply
| Test | Rule |
|---|---|
| Minimum employment period | At least 6 months, or 12 months with a small business employer |
| Small business | Fewer than 15 employees, counting associated entities and regular, systematic casuals |
| Coverage | Covered by a modern award or enterprise agreement, or earning less than the high income threshold |
| High income threshold | $190,100 from 1 July 2026; $183,100 for dismissals on or before 30 June 2026 |
| Deadline | 21 days from the dismissal taking effect |
| Application fee | $92.70 for 2026-27, changing each 1 July |
The threshold is adjusted every 1 July. The Commission can waive the fee for applicants in serious financial hardship, as of October 2026.
The 21-day rule is the one that sinks claims
Here's the insight most people learn too late. The Fair Work Ombudsman doesn't investigate unfair dismissal complaints at all; the application goes to the Commission, and it must be lodged within 21 days. Someone who spends three weeks trying to sort it out with the employer, or waiting for a call back, can run out of time before they've started. If you think you have a claim, check eligibility first and lodge on time, then talk.
What the Commission looks at
When deciding whether a dismissal was harsh, unjust or unreasonable, the Commission must consider several factors, including:
- whether there was a valid reason for the dismissal related to the person's capacity or conduct;
- whether the person was told the reason and given a chance to respond;
- if the dismissal was for underperformance, whether the person had been warned about it beforehand.
In the Fair Work Ombudsman's example, an employee told she was being let go for performance, without any earlier warning or feedback, used the Commission's eligibility quiz, found she was eligible and learned she had 21 days to apply.
Small businesses and the Fair Dismissal Code
A small business employer is one with fewer than 15 employees at the relevant time. The unfair dismissal rules still apply, with two key differences: employees can only claim after 12 months, and if the employer followed the Small Business Fair Dismissal Code, the dismissal is considered fair. For a small business owner, following the Code's warning steps and keeping records is the strongest protection there is.
What a claim can achieve
- The employee lodges the application with the Commission within 21 days and pays the fee or asks for a waiver.
- The employer is notified and can respond or raise an objection, for example that the person wasn't eligible.
- The Commission runs conciliation for unfair dismissal claims, a chance to settle before any hearing.
- If it isn't resolved, the Commission decides whether the dismissal was unfair.
- If it was, the Commission may order reinstatement or compensation.
When unfair dismissal isn't the right claim
Some dismissals belong in a different process. A dismissal for a protected reason, such as exercising a workplace right, can be a general protections claim, and some situations fall under unlawful termination instead. Employees above the income threshold who aren't covered by an award or agreement can't use unfair dismissal at all. For how the rules differ in the UK, see my guide to unfair dismissal in the UK, and for what employers must give every worker, the National Employment Standards.
A pre-dismissal checklist for employers
Because the Commission looks at process as much as reasons, a short checklist prevents most problems. Before ending someone's employment, check that you can answer yes to each of these:
- Is there a valid reason linked to the person's capacity or conduct, and can you show it?
- Have you told them the reason clearly, and given them a real chance to respond before deciding?
- If it's about performance, did you warn them earlier and give them time to improve?
- If you're a small business with fewer than 15 employees, have you followed the Small Business Fair Dismissal Code?
- If you're calling it a redundancy, is the job itself no longer needed, rather than the person?
- Have you recorded each step, with dates?
None of this stops an employer dismissing someone who isn't working out. It simply makes the decision defensible if it's challenged.
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My verdict
For employees, the deadline matters more than anything else: 21 days goes quickly, so lodge first and negotiate second. For employers, the claims that succeed are usually about process, not reasons, so give a reason, give a chance to respond, warn before dismissing for performance, and if you're a small business, follow the Code and keep the paperwork.
Frequently asked questions
How long do you have to claim unfair dismissal in Australia?
21 days from when the dismissal took effect. The application goes to the Fair Work Commission.
Who can claim unfair dismissal in Australia?
Employees who've worked at least 6 months (12 months for a small business) and are covered by an award or agreement or earn less than the high income threshold of $190,100, as of October 2026.
How much does it cost to lodge an unfair dismissal claim?
The Fair Work Commission application fee is $92.70 for 2026-27. It can be waived for serious financial hardship.
What if I miss the 21-day deadline for unfair dismissal?
The Fair Work Commission lets you ask for an extension of time, but it isn't automatic, so lodge within 21 days wherever possible.
Does the Fair Work Ombudsman handle unfair dismissal claims?
No. The Fair Work Ombudsman says it doesn't investigate unfair dismissal complaints. Applications go to the Fair Work Commission.
What counts as a small business for unfair dismissal?
An employer with fewer than 15 employees, counting associated entities and casuals employed on a regular and systematic basis.
