Why 21 days is the number that matters most
An unfair dismissal application must be lodged with the Fair Work Commission within 21 calendar days after the dismissal takes effect — not 21 business days. Weekends and public holidays included. The clock starts on the day your dismissal takes effect, which is usually your last day of employment, not the day you were told and not the day your final pay landed.
This deadline is unforgiving by design. The Commission can extend it only in "exceptional circumstances," and the bar for that is genuinely high. Being upset, being unsure of your rights, or simply not getting around to it are not exceptional circumstances. Serious illness, or being actively misled about your dismissal, might be — but you cannot count on it. The safest assumption is that once 21 days pass, the door closes.
The people who protect their position best are not the ones with the strongest cases — they are the ones who act quickly. If you are reading this in the first few days after losing your job, you are in the best possible position. If you are reading it on day 18, you need advice today.
Are you eligible to claim?
Not everyone who is dismissed can bring an unfair dismissal claim. You generally need to pass all of these:
- You were dismissed — including constructive dismissal, where your employer's conduct left you no real choice but to resign. It does not include a genuine mutual agreement, or resigning simply because you found a better job.
- You served the minimum employment period — at least 6 months of continuous service, or 12 months if your employer is a small business employer with fewer than 15 employees.
- You are award-covered, agreement-covered, or earn under the high-income threshold — if neither an award nor an agreement applies, you must earn below the high-income threshold (indexed each 1 July). Above that threshold without coverage, unfair dismissal is not available.
- It was not a genuine redundancy — a genuine redundancy is a complete defence to an unfair dismissal claim. See our redundancy guide for the legal test.
If you do not qualify for unfair dismissal, that is not necessarily the end of the road. A general protections claim may be open to you — and in dismissal cases, that also runs on a 21-day deadline. Choosing the wrong claim, or missing which one applies, can be costly — which is exactly why early advice matters.
What "unfair" actually means
People often assume that if their dismissal felt unfair, it legally was. The test is narrower than that. The Commission asks whether the dismissal was "harsh, unjust or unreasonable." It weighs things like: was there a valid reason connected to your capacity or conduct? Were you told about that reason and given a chance to respond? Were you warned about performance problems before being dismissed for them? Were you allowed a support person in relevant meetings?
A dismissal can be substantively justified but still unfair because the process was botched — and equally, a clumsy-feeling dismissal might still be lawful if the reason was sound and the process fair. Understanding this distinction early helps you form a realistic view rather than an emotional one.
What happens after you lodge
Here is the part that surprises most people: the overwhelming majority of unfair dismissal claims never reach a hearing. After you lodge (using Form F2), the employer files a response, and the Commission then offers conciliation — an informal, private, without-prejudice discussion designed to help both sides reach their own agreement.
Conciliation is typically held about five weeks after the application, runs for up to 90 minutes, and is usually conducted by phone or video. It is led by an independent conciliator who does not take sides and cannot impose a decision. Their job is to help both parties understand the strengths and weaknesses of their positions and explore whether a settlement is possible.
Around three in four cases settle at or before conciliation. If a matter does not settle, it moves to a Member who, like a judge, will hear evidence and make a binding decision.
How to prepare for conciliation
Preparation is where you give yourself the best chance of a good outcome. Before the day: gather your employment contract, a recent payslip, any warning letters or the dismissal letter, and copies of the application and response. Read the other side's response carefully, even if you disagree with all of it. Write down your key issues and — importantly — the outcome you want and the outcome you would accept. These are rarely the same number, and knowing your range in advance stops you being caught flat-footed.
A useful mindset: conciliation is about facts and interests, not about being proven right. Coming in wanting an apology and a formal finding of wrongdoing, rather than a practical settlement, is the most common way people talk themselves out of a good outcome.
What a realistic outcome looks like
Because conciliation lets parties agree to almost anything, settlements are flexible in a way a hearing can never be. Common elements include: a payment (often measured in weeks of pay, not a windfall); an agreed statement of service or reference (often more valuable than money for your next job); a non-disparagement agreement; a mutual release; and confidentiality over the terms.
Compensation, if a matter runs all the way to a Member's decision, is capped (indexed annually) and reinstatement, while technically the primary remedy, is ordered relatively rarely.
If you reach agreement, you will sign a Deed of Settlement or Terms of Agreement — a binding legal contract. If unrepresented, you are usually given a short cooling-off period (commonly three days) to change your mind — a genuinely important protection, so use that window to think clearly before the agreement becomes final.
Where private mediation fits
The Commission's conciliation is not your only option. Private mediation with an accredited mediator can run before you lodge — sometimes resolving things without a formal claim — or alongside a lodged claim, with one of our own mediators focused on your specific dispute, more time, and a more tailored process than a 90-minute phone call allows. This is often the better route in more complex or higher-value matters, or where the relationship is worth preserving. See our unfair dismissal and termination mediation page for how we approach it.