Responding to an Unfair Dismissal Claim

There is a myriad of applications that can be lodged against an employer, which is reflective of the many types of workplace disputes that can arise under the Fair Work Act 2009 (Cth) (FW Act). However, the most common type of application is unfair dismissal. This is where an employee claims their dismissal was harsh, unjust or unreasonable.

In this article we will outline the basic steps for an unfair dismissal application and the arguments an employer may raise to contest the application.

Step 1 — Unfair Dismissal Application

An employee who has been dismissed must lodge a Form F2 – Unfair Dismissal Application with the Fair Work Commission (FWC). The employee will be known as the applicant. The application must be lodged within 21 days of the date of dismissal (although the FWC may allow an extension in special circumstances).

Step 2 — Response to Unfair Dismissal Application

The FWC will send the employer a copy of the application and any documents that were sent with the application. The employer will be known as the respondent. The FWC will give the respondent 7 days to provide a response by lodging a Form F3 – Employer Response to Unfair Dismissal Application.

The response will usually deal with why the dismissal was not unfair and, where applicable, any jurisdictional objections. It is important to carefully read the unfair dismissal application and review the circumstances of the dismissal to determine the appropriate arguments in response.

Not Unfair

The FWC will consider the following criteria to determine whether the dismissal was unfair:

Whether there was a valid reason for dismissal relating to the person's capacity or conduct (including its effect on the safety and welfare of other employees).
Whether the applicant was notified of the reason for dismissal.
Whether the applicant was given an opportunity to respond to any reason related to their capacity or conduct.
Any unreasonable refusal by the respondent to allow the applicant to have a support person present at discussions relating to the dismissal.
If the dismissal related to unsatisfactory performance, whether the applicant had been warned about that performance before the dismissal.
The degree to which the size of the respondent's enterprise would be likely to impact the procedures followed in effecting the dismissal — a small business may not have the same resources as a large business.
The degree to which the absence of dedicated human resource management specialists or expertise would be likely to impact on the procedures followed.
Any other matters the FWC considers relevant — this can cover differential treatment, the impact on the applicant's personal or economic situation, long and satisfactory work history, summary dismissal, and procedural fairness.

Presuming there is no jurisdictional objection, it is important that the employer address the above criteria prior to dismissing an employee, as this can greatly impact the prospects of defence when drafting the response.

Jurisdictional Objection

Where applicable, a respondent is able to raise one or more jurisdictional objections on the basis that the applicant is not eligible to lodge an unfair dismissal application. The most common grounds are as follows:

The application was lodged more than 21 days after the dismissal took effect. The applicant will need to show special circumstances warranting an extension.
The applicant was not an employee — for example, an independent contractor is not an employee.
The applicant was not dismissed — for example, an applicant who resigned is not dismissed.
The dismissal was a case of genuine redundancy. The respondent would need to prove compliance with the genuine redundancy requirements of the FW Act, including any consultation requirements under a modern award or enterprise agreement.
The applicant did not complete the minimum employment period — 12 months for an employer with fewer than 15 employees, or 6 months for a larger employer. Note that two employers may be counted as one if they are associated entities.
The respondent is a small business employer with fewer than 15 employees and complied with the Small Business Fair Dismissal Code.
The applicant is not covered by a modern award or enterprise agreement and earned more than the high-income threshold ($190,100 per annum as of 1 July 2026).

Step 3 — Conciliation

The FWC will organise a conciliation as soon as possible after it receives the unfair dismissal application — usually two to five weeks after receipt.

Conciliation is a confidential and informal process conducted by a conciliator or tribunal member whereby the parties attempt to negotiate a mutually agreeable settlement. It is also a voluntary process, so either the applicant or the respondent can choose not to participate, but this must be done no later than the day before the conciliation. If one party objects, the application will be referred to hearing.

The applicant or respondent may request a delay or change to the date of the conciliation if there is a very good reason — such as illness, death, serious injury, or unavailability due to pre-planned travel. The FWC may require supporting evidence.

If the respondent submits a jurisdictional objection, the FWC will ask whether the respondent wishes to take part in a conciliation and then, if not resolved, proceed to a jurisdictional hearing — or opt out of the conciliation and schedule a jurisdictional hearing directly. Generally speaking, it is more cost effective to attempt resolution at a conciliation rather than at a hearing.

It is common for unfair dismissal applications to proceed to a conciliation and ultimately resolve. The applicant and respondent will then formally record their settlement pursuant to a deed or terms of settlement, and the applicant will be required to lodge a Form F50 – Notice of Discontinuance.

Step 4 — Hearing

If the matter does not resolve at a conciliation (or conciliation does not occur), the unfair dismissal application will proceed to a hearing. A hearing is a formal and legally binding process whereby a tribunal member reviews evidence, hears arguments, and makes a final enforceable decision.

If the tribunal member decides that the dismissal was unfair, an order may be made against the respondent for the applicant to be:

1Reinstated — which may include recognising continuity of service and provision of pay or benefits lost while not working; or
2Paid compensation — up to the compensation cap, which is the lesser of six months pay or $95,050 (half the high-income threshold of $190,100 as of 1 July 2026).

If the tribunal member decides that the dismissal was not unfair, or that the FWC has no jurisdiction, an order will be made dismissing the application.

Concluding Comments

Employers need to be aware of the unfair dismissal rules in the FW Act and ensure that the dismissal process complies with these rules. Documentation is also important to provide evidence of compliance.

The employer will need to adequately respond if an employee decides to contest their dismissal. This will entail not only correctly completing the response in terms of the facts, but also making crucial decisions about strategy and the application of the law — including the possibility of invoking a jurisdictional objection. The employer will need to be mindful during the conciliation that the settlement terms are reasonable. If the matter proceeds to a hearing, there will be a requirement to draft submissions, present evidence, and advocate the case before the FWC.

How We Can Help

Practical support, shaped to your matter.

We can provide advice regarding the prospects of a successful defence against an unfair dismissal application, draft and lodge a response, provide representation before the FWC in both the conciliation and/or hearing, and negotiate an agreed settlement. If you would like to know more about unfair dismissal or how Employer Services Legal can help, please contact us.