How to File an Unfair Dismissal Claim in Australia

Unfair dismissal can feel overwhelming, but knowing the process helps you take action with confidence. The Fair Work Commission (FWC) is the national workplace relations tribunal that deals with these claims. Here’s a clear roadmap.

Is It Worth It?

Yes, it can be worth claiming unfair dismissal, but the likelihood of “winning” depends on the strength of your case. Most unfair dismissal claims in Australia are resolved at conciliation rather than going all the way to a formal hearing, and only a minority result in reinstatement or compensation.

Key Statistics on Unfair Dismissal Outcomes

Recent data from the Fair Work Commission (FWC) and legal reviews show:

Volume of claims: In FY2024/25, the FWC received 16,500 unfair dismissal claims, up from 14,772 the previous year
Resolution stage: The vast majority of claims are settled at or before conciliation, meaning employees and employers reach an agreement without a formal hearing
Formal hearings: Only a small proportion proceed to a full hearing.
Success rates:
- Around 20–25% of claims that reach a hearing result in a finding of unfair dismissal (with reinstatement or compensation).
- Compensation is capped at 26 weeks’ pay, and reinstatement is relatively rare.
Employer outcomes: Many employers successfully defend claims, especially if they followed proper procedures.

What This Means for Employees

You have rights: If you believe your dismissal was harsh, unjust, or unreasonable, you can challenge it through the Fair Work Commission (FWC).
Act quickly: You must lodge your claim within 21 calendar days of being dismissed. Missing this deadline usually means you lose the right to apply.
Evidence matters: The strength of your case depends on documentation — contracts, payslips, emails, warnings, incident reports, and witness statements.
Conciliation is common: Most cases are resolved informally at conciliation, where you and your employer negotiate an outcome. This could mean compensation, a reference, or agreed separation terms.
Reinstatement is rare: While possible, reinstatement (getting your job back) is less common. Compensation is more typical, capped at 26 weeks’ pay.
Support helps: You don’t need to be in a union to file, but unions, Legal Aid, and Community Legal Centres can provide representation and reduce stress.
Success rates: Only a minority of cases that reach a formal hearing result in a finding of unfair dismissal, but many employees achieve settlements at conciliation.

Step 1: Check Your Eligibility

Before lodging a claim, make sure you qualify:

Minimum employment period:
- 6 months for most employees.
- 12 months if employed by a small business (fewer than 15 staff).
Probation: Employees dismissed during probation generally cannot file.
Coverage: You must be under the national Fair Work system (most employees are).
Dismissal type: It must not be a genuine redundancy or consistent with the Small Business Fair Dismissal Code.

Step 2: Gather Your Evidence

Strong documentation is essential:

Employment contract, payslips, and rosters.
Emails, texts, or letters about performance or dismissal.
Performance reviews, warnings, or positive feedback.
Incident reports, medical certificates, and leave approvals.
Witness statements from colleagues or union reps.
Workplace policies and procedures to show whether due process was followed.

Practical Examples Of Evidence To Gather

Employment Records

Employment contract or letter of appointment.
Payslips and rosters showing your work pattern.
Position descriptions or duty statements that outline your role.

Communication Evidence

Emails, texts, or letters from your employer about performance, warnings, or dismissal.
Meeting notes or diary entries from discussions with management.
Termination letter or notice of dismissal.

Performance & Conduct Records

Performance reviews or appraisals showing your work history.
Written warnings (if any) and your responses.
Positive feedback from supervisors, colleagues, or parents (in childcare settings).

Incident & Compliance Reports

Workplace incident reports (e.g., psychosocial hazard reports, safety concerns).
Medical certificates or doctor’s notes if health was a factor.
Leave applications and approvals (to show compliance with policy).

Witness Statements

Colleagues who can confirm events, treatment, or conversations.
Union representatives or support persons who attended meetings with you.

Supporting Context

Policies and procedures (e.g., disciplinary policy, code of conduct) to show whether the employer followed correct process.
Small Business Fair Dismissal Code compliance documents (if relevant).
Comparisons with how other staff were treated in similar situations.

Educator‑specific examples

Since you’re working in early childhood education, evidence might also include:

Parent communication logs showing positive engagement.
Programming or planning records demonstrating professional practice.
Accident/incident forms showing you followed reporting requirements.
Roster changes or staffing ratios that may have contributed to workplace stress or conflict.

Keep everything factual and organized. A simple folder with chronological documents makes it easier for the Fair Work Commission (and your union or lawyer) to see the full picture.

Step 3: Lodge Your Application

Deadline: Within 21 calendar days of dismissal. Late applications are rarely accepted.
Form: Complete Form F2 – Unfair Dismissal Application via the FWC website.
Fee: A filing fee applies (around AUD $80, subject to change). Fee waivers may be available for financial hardship.

Step 4: Employer Response

Your employer must file a response explaining their reasons for dismissal. This sets the stage for conciliation.

Step 5: Conciliation

The FWC arranges a conciliation conference (usually by phone). This is informal and aims to resolve the matter. Possible outcomes include:

Reinstatement of your job.
Compensation (capped at 26 weeks’ pay).
Settlement agreements.

Step 6: Formal Hearing

If conciliation fails, the case goes to a formal hearing before a commissioner. Both sides present evidence, and the commissioner issues a binding decision.

Step 7: Possible Outcomes

Reinstatement: Returning to your job with continuity of service.
Compensation: Financial payment if reinstatement isn’t practical.
Dismissal of claim: If the FWC finds the dismissal was fair.

Free Legal Aid & Community Legal Centres

Educators don’t have to face this process alone. Free and low‑cost support is available:

Legal Aid NSW – Workplace Rights Service: Free advice and representation on dismissal, discrimination, and workplace rights.
Victoria Legal Aid: Employment law help, including unfair dismissal.
Legal Aid Queensland: Guidance on workplace disputes and referrals.
Circle Green Community Legal Centre (WA): Specialist workplace rights service.
Redfern Legal Centre (NSW): Employment Rights Legal Service for unfair dismissal and workplace disputes.
Federation of Community Legal Centres (Victoria): Directory of centres across the state.
CLCs Australia: National peak body connecting you to local centres.

Bring all documentation (contracts, payslips, dismissal letters, incident reports) to your appointment. These services can also connect you with pro bono lawyers or unions if your case is complex.

Practical Tips

Act quickly: The 21‑day deadline is strict.
Seek support: Join a union, contact Legal Aid, or a Community Legal Centre.
Stay professional: Keep communication factual and avoid emotional language.

Filing an unfair dismissal claim is about timeliness, documentation, and support. With the right preparation and free legal services available to educators, you can challenge a dismissal that breaches fairness standards and protect your workplace rights.