What is unfair dismissal?

Unfair dismissal is when an employee is dismissed in a way that was harsh, unjust, or unreasonable. To claim unfair dismissal, the employee must have completed the minimum employment period (6 months for businesses with 15 or more employees, 12 months for small businesses) and earn below the high income threshold ($175,000 for 2024–25) or be covered by an award or enterprise agreement.

What is a general protections claim?

General protections claims relate to adverse action taken against an employee for an unlawful reason, such as exercising a workplace right under the Fair Work Act (e.g., taking leave, raising a complaint), having a protected attribute (e.g., race, age, disability), or engaging in union activity. Unlike unfair dismissal, there's no minimum employment period.

What is adverse action?

Adverse action includes: dismissing an employee, injuring them in their employment, altering their position to their prejudice, discriminating in hiring, or refusing to employ. The action must be because of a protected reason to be unlawful under the Fair Work Act.

How are underpayment claims different?

Underpayment claims are about recovering money owed — unpaid wages, incorrect penalty rates, missing superannuation, etc. They can be brought up to 6 years after the underpayment occurred. Small claims (up to $100,000) can be heard in a simpler process without the formality of a full Federal Court hearing.

What is the 7-day deadline for responding to an unfair dismissal claim?

Employers must file Form F3 (Employer response to unfair dismissal application) with the Fair Work Commission within 7 calendar days of receiving the claim notice. This is a strict deadline — if you miss it, you lose the right to raise jurisdictional objections and the matter may proceed without your full input. File early and seek legal advice promptly.

What forms do I need to respond to a Fair Work claim?

The form depends on the claim type: Unfair dismissal — Form F3; General protections involving dismissal — Form F8A; General protections not involving dismissal — Form F8C or F8D. All forms are filed with the Fair Work Commission by email or through the online portal. Always send a copy to the employee or their representative.

What is the Small Business Fair Dismissal Code?

The Small Business Fair Dismissal Code applies to businesses with fewer than 15 employees. It sets out what constitutes a fair dismissal — summary dismissal for serious misconduct, or dismissal for performance/conduct issues following a documented warning process. Following the Code can be a complete defence to an unfair dismissal claim. See our guide on how to terminate an employee for the full process.

What happens if I don't respond to a claim?

Failing to respond by the deadline can result in the Commission or Court making a decision without hearing your side. In unfair dismissal claims, this typically means the claim will proceed to conciliation without your input, and you may lose the ability to object on jurisdictional grounds. Always respond within the timeframe — even a brief response is better than none.

Should I try to settle before conciliation?

Early settlement can save significant legal costs and management time, and avoids the uncertainty of a hearing. However, do not settle without understanding your legal position and the merits of the claim. Settlement does not admit fault but does resolve the matter. Consider seeking legal advice before making any settlement offers.

What happens at conciliation?

Conciliation is an informal conference (usually by phone or video) where a Fair Work Commission conciliator helps the parties try to reach agreement. It is private and without prejudice — what is said cannot be used at a later hearing. The majority of claims settle at conciliation. If no agreement is reached, the claim proceeds to a formal hearing.

Can I be represented at Fair Work proceedings?

You can represent yourself or have a lawyer or agent represent you. At conciliation, representation is common. At formal hearings, you need permission to be legally represented, which is usually granted if the employee is also represented or the matter is sufficiently complex.

What remedies can be awarded for unfair dismissal?

If unfair dismissal is found, remedies include reinstatement (returning to the job) with back-pay, or compensation of up to 26 weeks' pay (capped at half the high income threshold). The Commission considers factors including the employee's conduct, any contributory behaviour, and efforts to mitigate loss.

What are the penalties for general protections breaches?

General protections breaches can result in: compensation for economic and non-economic loss (no cap), civil penalties of up to $93,900 per contravention for companies as of 2025 (higher for serious or repeated contraventions), reinstatement orders, and orders to remedy the adverse action.

What about underpayment claims?

Underpayment claims can result in: orders to pay the amount owed plus interest, civil penalties of up to $93,900 per contravention for companies (as of 2025), and since January 2025, intentional wage theft can result in criminal penalties including imprisonment for individuals.

Can I claim costs if I win?

In Fair Work Commission proceedings, costs orders are rare and only made if a party's case was frivolous or vexatious, or they acted unreasonably. In Federal Court proceedings, costs are more commonly awarded to the successful party, though the court retains full discretion.

HOW-TO GUIDE

How to respond to a Fair Work claim as an Australian employer

A complete guide to responding to unfair dismissal, general protections, and underpayment claims in Australia. Includes Form F3, the 7-day deadline, defence strategies, and termination policy templates.

14 min read • Updated 5 May 2026

Written by

Steve Harris

General information only – not legal advice

This guide provides general information about Fair Work claims and is not legal advice. Seek professional legal advice for your specific situation. It does not constitute legal, HR, or professional advice and should not be relied on as a substitute for advice specific to your business, workforce, or circumstances.

HR Hub disclaimer • Modern Awards • Fair Work

Quick response: what to do when you receive a claim

1 Read the claim carefully — identify the claim type (unfair dismissal, general protections, or underpayment) and note your response deadline
2 File the correct form within 7 days — Form F3 for unfair dismissal, Form F8A or F8C for general protections — file with the Fair Work Commission and send a copy to the employee
3 Seek legal advice and gather evidence — pull together the employment contract, warning letters, attendance records, payroll records, and any investigation documentation

Do not ignore the claim. Failing to respond by the deadline can result in the matter proceeding without your input and the loss of your right to raise jurisdictional objections.

STEP-BY-STEP

How to respond to a claim in 6 steps

Follow this process when you receive a Fair Work claim.

Receive and review the claim

Carefully review the claim documentation to understand what is being alleged and the deadlines for your response.

Tips:

Note the type of claim (unfair dismissal, general protections, underpayment, etc.)
Check the deadline — 7 calendar days to respond for unfair dismissal and general protections claims
Identify the specific allegations being made
Do not ignore the claim — failure to respond can result in a decision being made by the Fair Work Commission without your input

Gather relevant documentation

Collect all documents related to the employee's employment and the circumstances of the claim, including records that support your version of events.

Tips:

Employment contract and position description
Performance reviews, warnings, and disciplinary records
Relevant policies and procedures
Payroll records, timesheets, and pay slips
Any correspondence with the employee

Seek legal advice

Consult with an employment lawyer or workplace relations specialist before responding to the claim.

Tips:

Fair Work claims have strict time limits and procedural requirements
Early legal advice can help you understand your options and risks
Consider the cost of defending vs settling the claim
Your lawyer can help prepare your response and represent you at conciliation or a hearing

Prepare your response

Prepare a written response addressing each allegation and providing your version of events, supported by evidence.

Tips:

Address each allegation specifically and factually
Attach supporting documentation, including any workplace investigation reports
Be honest — do not exaggerate or misrepresent facts
File within the deadline and send a copy to the employee or their representative

Attend conciliation

Participate in the conciliation process to attempt to resolve the matter without a formal hearing.

Tips:

Most claims proceed to conciliation first — it is informal and confidential
A Fair Work Commission conciliator facilitates but does not make a decision
Consider what settlement outcome you would be willing to accept
Bring documentation and authority to make settlement decisions on the day

Resolve or proceed to hearing

Either reach a settlement at conciliation or prepare to defend the claim at a formal hearing before a commissioner.

Tips:

If settled, ensure the agreement is documented and signed by all parties
If proceeding to a hearing, prepare witness statements and evidence
Consider the costs, time, and uncertainty of a formal hearing
Hearings are more formal and decisions are binding and enforceable

Maintain compliant records

RosterElf HR software keeps the audit trail of timesheets, attendance, and shift records you need if a Fair Work claim arises.

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KEY DEADLINES

Deadlines and eligibility at a glance

Miss the 7-day response window and you may lose your right to raise jurisdictional objections.

Response deadlines

Unfair dismissal (Form F3): 7 calendar days from receiving claim notice
General protections (Form F8A / F8C): 7 calendar days
Employee must file claim: within 21 days of dismissal taking effect
Underpayment claims: up to 6 years back

Eligibility thresholds

Minimum employment period: 6 months (15+ employees) or 12 months (small business <15 employees)
High income threshold: $175,000/year (2024–25) — employees above this and not award-covered cannot claim unfair dismissal
General protections: no minimum period — applies to all employees from day one of employment

CLAIM TYPES

Types of Fair Work claims

Under the Fair Work Act 2009, employees can bring several types of claims. The claim type determines the correct response form, deadline, and forum.

Claim type	Description	Time limit	Forum
Unfair dismissal	Claim that termination was harsh, unjust, or unreasonable	21 days from dismissal	Fair Work Commission
General protections (dismissal)	Claim that termination was for an unlawful reason (discrimination, workplace right)	21 days from dismissal	Fair Work Commission or Federal Court
General protections (non-dismissal)	Claim of adverse action other than dismissal	6 years	Federal Court or Federal Circuit Court
Underpayment	Claim for unpaid wages, entitlements, or superannuation	6 years	Small Claims (up to $100k) or Federal Court
Discrimination	Claim of unlawful discrimination based on protected attributes	Varies by jurisdiction	Human Rights Commission, state tribunals, or courts

SMALL BUSINESS

Small business Fair dismissal code

Businesses with fewer than 15 employees have specific rules and a longer minimum employment period.

What is the Code?

The Small Business Fair Dismissal Code sets out what constitutes a fair dismissal for businesses with fewer than 15 employees. Following the Code can be a complete defence to an unfair dismissal claim. It covers summary dismissal for serious misconduct, and dismissal for performance or conduct issues following a documented warning process.

Key small business rules

12-month minimum period — employees must have been employed for 12 months before they can claim unfair dismissal (vs 6 months for larger businesses)
Warning required — for performance and conduct issues, you must warn the employee and give a reasonable opportunity to improve, except in cases of serious misconduct
Support person — the employee has the right to a support person at any discussion about dismissal

See our guide on how to terminate an employee for the full process.

DEFENCES

Common defence strategies

Potential defences depend on the type of claim and the specific facts. A regular HR audit helps ensure your documentation is ready if a claim arises.

Valid reason for dismissal

Demonstrate there was a valid, work-related reason for termination directly related to the employee's conduct or capacity.

Supporting evidence: Performance records, warnings, policy breaches, restructure documents

Procedural fairness

Show the employee was given a proper opportunity to respond before dismissal and had access to a support person.

Supporting evidence: Meeting notes, show cause letters, employee responses, support person records

No protected attribute or right

Demonstrate the action was taken for a legitimate business reason and not because of a protected attribute or workplace right.

Supporting evidence: Timing of the decision, consistent treatment records, documented business reasons

Correct payment

Show wages and entitlements were correctly calculated and paid throughout the employment.

Supporting evidence: Payroll records and timesheets, award calculations, employment records, superannuation statements

Jurisdictional objection

Challenge whether the employee is eligible to make the claim — e.g., minimum employment period not met or income above the high income threshold.

Supporting evidence: Employment dates, employee count, income threshold documentation

Important: Good record-keeping throughout employment is your best protection. See our guide on conducting an HR audit to ensure your documentation is in order.

TIMELINE

Typical claim timeline

What to expect from receipt of claim through to resolution.

Receive claim notification from the Fair Work Commission

Day 0

Deadline to lodge employer response — Form F3 (unfair dismissal)

Day 7

Deadline to lodge employer response — Form F8A/F8C (general protections)

Day 7

Conciliation conference scheduled

Within 4–8 weeks

Hearing scheduled if conciliation unsuccessful

Within 3–6 months

Decision issued by the commissioner

Usually within 2–4 weeks of hearing

Timeframes are indicative and may vary based on claim complexity, Commission scheduling, and whether extensions are granted.

Regulatory sources

This guide is aligned with official Australian workplace laws and Fair Work Commission procedures.

FWC — Form F3 FWC — General protections Fair Work — Unfair dismissal Fair Work — General protections Small Business Fair Dismissal Code

FAQ

Frequently asked questions

Unfair dismissal is when an employee is dismissed in a way that was harsh, unjust, or unreasonable. To claim unfair dismissal, the employee must have completed the minimum employment period (6 months for businesses with 15 or more employees, 12 months for small businesses) and earn below the high income threshold ($175,000 for 2024–25) or be covered by an award or enterprise agreement.
General protections claims relate to adverse action taken against an employee for an unlawful reason, such as exercising a workplace right under the Fair Work Act (e.g., taking leave, raising a complaint), having a protected attribute (e.g., race, age, disability), or engaging in union activity. Unlike unfair dismissal, there's no minimum employment period.
Adverse action includes: dismissing an employee, injuring them in their employment, altering their position to their prejudice, discriminating in hiring, or refusing to employ. The action must be because of a protected reason to be unlawful under the Fair Work Act.
Underpayment claims are about recovering money owed — unpaid wages, incorrect penalty rates, missing superannuation, etc. They can be brought up to 6 years after the underpayment occurred. Small claims (up to $100,000) can be heard in a simpler process without the formality of a full Federal Court hearing.

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How to respond to a Fair Work claim as an Australian employer

Quick response: what to do when you receive a claim