Facing an Unfair Dismissal Claim? An Employer’s Defence Guide (Form F3)

A former employee has applied to the Fair Work Commission (FWC) saying you dismissed them unfairly, and you have been served with their application. The first thing to understand is that the clock is already running: your response is due fast, and a late response can be ignored. This page explains, for an Australian employer, the deadline you cannot miss, the objections you can genuinely raise, how the Commission decides whether a dismissal was fair, what conciliation is, and what the matter can cost. The guiding idea is simple: know your obligations, prepare your response, and protect your business.

Being named in a claim is not the same as losing one. The Commission orders a remedy only where the dismissal is found to be unfair, and employers have real, lawful objections and defences where the facts support them. But a dismissal that was harsh, unjust or unreasonable does not become defensible because of how the paperwork is written. Your job is to respond on time, raise only the objections your facts support, and, where the dismissal was not defensible, resolve the matter sensibly rather than fighting a case you cannot win.

The 7-day deadline comes first

When a former employee claims unfair dismissal, they apply using Form F2 under s 394 of the Fair Work Act 2009 (Cth), and they must do so within 21 days after the dismissal took effect. You respond using Form F3. Two things must happen within 7 days after you are served with the F2: you must lodge the completed F3 with the Commission, and you must serve a copy on the former employee. If your response is late, the Commission’s guidance is clear that it may not consider it when deciding the case. So before you work out what to argue, make sure the response will be lodged and served in time.

The F3 asks you to set out, in numbered paragraphs, the reason or reasons you dismissed the person and your response to their claims, to attach your supporting documents (such as warning letters), and to give your business details and employee numbers. It is also where you state any jurisdictional objection, and it carries a question about the use of generative tools.

Jurisdictional objections, where the facts support them

Before the Commission looks at whether the dismissal was fair, it decides certain threshold questions (s 396). Raise an objection only where your facts genuinely support it:

• Out of time. The application must be lodged within 21 days of the dismissal taking effect (s 394(2)). The Commission allows a longer period only for exceptional circumstances (s 394(3)), which ordinary explanations like being busy or forgetting the deadline do not usually meet.
• Minimum employment period not met. An employee is protected only after completing the minimum employment period: 6 months, or 1 year if you are a small business employer of fewer than 15 employees (ss 382-383).
• Earnings over the high income threshold. An employee is not protected if their earnings were at or above the high income threshold ($190,100 for dismissals on or after 1 July 2026) and they were not covered by a modern award and no enterprise agreement applied (s 382). Award or agreement coverage defeats this objection whatever the earnings.
• Genuine redundancy. A dismissal is a genuine redundancy only if the job is no longer required because of operational changes, you met any award or agreement obligation to consult, and redeployment was not reasonably available in your enterprise or an associated entity (s 389). If any limb fails, it is not a genuine redundancy.
• Small Business Fair Dismissal Code. If you are a small business employer and complied with the Code, the dismissal is not unfair (s 388). The Code allows summary dismissal only where you believe on reasonable grounds the conduct is serious enough to justify it; otherwise it requires a valid reason, a warning, a chance to respond and improve, and a support person if asked.

There is also a threshold question of whether the person was an “employee” at all: unfair dismissal protection does not apply to a genuine independent contractor (s 382). That is a fact-specific question, so take advice before relying on it.

Was the dismissal harsh, unjust or unreasonable?

If no jurisdictional objection ends the matter, the Commission decides whether the dismissal was harsh, unjust or unreasonable, taking into account the factors in s 387: whether there was a valid reason related to the person’s conduct or capacity; whether the person was notified of that reason; whether they had an opportunity to respond; any unreasonable refusal of a support person; whether, for a performance dismissal, the person had been warned about the performance; the size of your business; the absence of dedicated HR expertise; and any other relevant matters. The size and HR factors are expressly protective of smaller employers, softening what is expected of your procedure, though they do not excuse the absence of a valid reason.

The honest use of these factors is as a self-assessment, not a script. Work through each against what you can actually prove. If you are weak on a valid reason and a fair process, the dismissal may well be found unfair, and that is the point to think seriously about settling at conciliation rather than contesting to a hearing.

Conciliation, and what the matter can cost

Most unfair dismissal matters are first listed for conciliation, which is informal, generally conducted by telephone, private and confidential, not recorded, and run by a conciliator who is usually a Commission staff member and does not decide the matter. Most matters resolve there. Any outcome is possible, including a payment, a statement of service, an apology or reinstatement, and a settlement is commonly recorded in a deed of release. If the matter does not settle, it goes to a conference or a hearing before a Member, who makes a binding decision; representation by a lawyer or paid agent at that stage needs the Commission’s permission (s 596).

If the Commission finds the dismissal unfair, reinstatement is the primary remedy; compensation is available only where reinstatement is inappropriate (s 390). Compensation is capped at the lesser of 26 weeks’ pay or the compensation cap ($95,050 for dismissals on or after 1 July 2026), and it cannot include any amount for shock, distress or humiliation (s 392(4)). On costs, each side usually bears its own (s 611), with limited exceptions for vexatious or unreasonable conduct (ss 611(2), 400A). These limits, and the cost and uncertainty of a hearing, are why resolving a weak case early is often the rational business decision.

Throughout, honesty to the Commission is mandatory. Giving false or misleading sworn evidence is an offence (s 678), and the Commission’s generative-tools guidance note, which applies in all matters from 20 October 2026, requires you to disclose and check any use of such tools and never to file content, or cite authorities, you have not verified.

Get the full Employer Defence Guide

The full guide is a practical Employer Defence Toolkit for responding to an unfair dismissal claim at the Fair Work Commission. It walks through the F2 and the 7-day F3 deadline in detail, each jurisdictional objection and what you must be able to show for it, a candid self-assessment against the s 387 factors, the evidence bundle and document register to build, what to expect at conciliation and how to approach settlement, plain response templates you can adapt (an F3 response outline and a without-prejudice settlement position), the remedies and limits if you lose, and the honesty and generative-tools rules in force. Every legal point is referenced to its primary source.

Get the full Employer Defence Guide – $29

This is general information about the law and procedure under the Fair Work Act 2009 (Cth), not legal advice, and it does not take account of your particular circumstances. Claim Done is not a law firm and does not provide legal advice. Laws, forms and figures change, and the high income threshold and compensation cap reset every 1 July; confirm the current position against the official sources before you act.

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