For employers
You have received an unfair dismissal claim: the next 7 days, and whether to get a lawyer
An email from the Fair Work Commission has landed with a former employee's unfair dismissal application attached, and it asks for your response within seven days. Most employers have never seen one before. The good news is that the process is designed to be manageable without a lawyer, most claims settle at a phone conciliation, and the money is capped. The bad news is that the seven days are real, the first response frames everything that follows, and a few early mistakes are expensive.
Updated . General information, not legal advice.
Time limits that apply
| What | Limit | Source |
|---|---|---|
| Employer's response to the Commission (Form F3) | Within 7 days of being told about the claim | Fair Work Commission, responding to an unfair dismissal claim |
| The employee's own deadline to have lodged | 21 days from the dismissal taking effect; late applications need exceptional circumstances | Fair Work Act s 394(2) |
| Maximum compensation (dismissals on or after 1 July 2026) | $95,050, being the lesser of 26 weeks' pay or half the high income threshold | fwc.gov.au/compensation-cap; Fair Work Act s 392 |
Do you need a lawyer for this?
Advice usually pays for itself when
- The employee was senior, well paid, or dismissed for alleged misconduct you would struggle to prove, and the potential exposure is near the $95,050 cap.
- The application also raises a general protections angle, a complaint, leave or a protected attribute, or the employee has a lawyer or union representative.
- There is a jurisdiction argument worth running: less than six months' service, a genuine redundancy, a high income employee outside award coverage, or a genuine resignation.
- You did not document the process, and you need to work out quickly what the file actually shows.
The free route is usually enough when
- A small, well-documented performance dismissal with warnings on file, a short-service employee, and a realistic settlement figure of a few weeks' pay.
- You followed the Small Business Fair Dismissal Code and can show it, and you are comfortable speaking for the business in a phone conciliation.
What should I check in the first 24 hours?
Four things decide whether the claim can even proceed. Did the employee have six months' continuous service, or twelve if you had fewer than fifteen employees at the time, counting regular casuals? Was the application lodged within 21 days of the dismissal? If the employee was not covered by an award or agreement, were they earning above the high income threshold of $190,100? And was it actually a dismissal, rather than a resignation or a genuine redundancy? Each is a jurisdictional objection you can raise in the response. Then pull the file: the contract, warnings, meeting notes, the termination letter, and anything showing the reason and the process. What is not on the file is as important as what is.
What goes in the response?
The Commission's employer response form asks for your version of events: the reason for the dismissal, the process you followed, any jurisdictional objections, and what outcome you seek. Keep it factual and calm. The response is a document the employee reads and that a Commission member reads later if the matter does not settle, so it should not contain anything you would not want quoted back. Attach the key documents rather than describing them. If you had fewer than fifteen employees, say so and complete the Small Business Fair Dismissal Code checklist, because compliance with the Code is a complete answer. If you are unsure whether to raise an objection, raise it; objections not raised early are harder to run later.
What is conciliation and what does it usually cost?
A conciliation is a private phone conference, usually within a few weeks of lodgement, run by a Commission conciliator who talks to each side separately and together to find a settlement. It is not a hearing. Nothing is decided and nothing said there can be used later. A large share of claims end here, typically with a payment and sometimes a statement of service, and the figures at conciliation tend to be measured in weeks of pay rather than at the cap, because the employee is trading certainty for the risk and delay of a hearing. Your cost is your time and, if you choose, a lawyer's fee for preparation or attendance. Employers do not pay the Commission's application fee.
What does the Commission look at if it goes to a hearing?
Whether there was a valid reason related to capacity or conduct, whether the employee was told the reason, whether they had a chance to respond, whether a support person was unreasonably refused, whether there were warnings before a performance dismissal, and the size of the business and its access to HR expertise. Small employers are given real latitude on process. They are not excused from having a reason. If the dismissal is found unfair, reinstatement is the primary remedy in the Act, though compensation is what is usually ordered, capped at the lesser of 26 weeks' pay or $95,050 for dismissals on or after 1 July 2026, reduced by what the employee has earned since and adjusted for their conduct.
When does a lawyer pay for itself?
When the exposure is high and the file is thin, because the settlement number moves with the strength of the case and a lawyer will price it honestly. When the employee is represented, because conciliation is a negotiation and the other side has someone who does it weekly. When there is a real jurisdictional point, since winning it ends the claim outright. And when the claim smells of general protections, which has no cap and a reverse onus. Liquid Employment Lawyers is FairWork Mate's paid legal partner for employers facing claims. It is an Australian employment law firm, not a free government service, and it sets out scope and fees before any work. For a modest, well-documented dismissal, many employers run conciliation themselves.
What is the free route for employers?
The Fair Work Ombudsman on 13 13 94 explains the rules to employers as well as employees, free, though it does not represent you at the Commission. The Commission's own page on responding to a claim, linked below, explains the form and the timeline. FairWork Mate's employer speaking notes tool prepares you for the conciliation call, the conciliation walkthrough explains the day, and the unfair dismissal checker lets you run the eligibility gates from the employee's side to see what they will argue. Free general information, not legal advice. FairWork Mate is not affiliated with the Commission or the Ombudsman.
Free FairWork Mate tools for this
Talk to Liquid Employment Lawyers about this
Share a few details and their team will be in touch to talk it through. No obligation, and you decide whether to go further after that first conversation.
Liquid Employment Lawyers is an Australian employment law firm and FairWork Mate's paid referral partner, not free Fair Work advice. They discuss scope and any fees with you directly. FairWork Mate is not affiliated with the Fair Work Commission or the Fair Work Ombudsman. For free general guidance, use the tools above or call the Fair Work Ombudsman on 13 13 94.
Prefer to read about the partnership first? About Liquid Employment Lawyers
Common questions
What happens if I miss the 7 days?
The Commission asks for the response within seven days but the claim does not go away if you are late, and a late response is far better than none. Contact the Commission, say the response is coming, and get it in. Do not let a late start become no response at all.
Can the employee get their job back?
Reinstatement is the primary remedy in the Act, but it is rarely ordered where the relationship has broken down, and compensation is the usual outcome. It is worth knowing that reinstatement is possible when deciding whether to settle.
Do I have to pay the employee's legal costs if I lose?
Usually not. The Commission's normal position is that each side pays its own costs, and cost orders are reserved for unreasonable conduct. That cuts both ways.
Is Liquid Employment Lawyers free?
No. It is an Australian employment law firm and FairWork Mate's paid referral partner. Enquiring through the site is free and there is no obligation. The Fair Work Ombudsman on 13 13 94 gives free information to employers.
We are a small business and followed the Code. Is that the end of it?
If the Commission is satisfied you complied with the Small Business Fair Dismissal Code, the dismissal is not unfair. Say so in the response and attach the evidence: the warning, the opportunity to respond, and for misconduct, the reasonable grounds for your belief.
Official sources
FairWork Mate AI
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General information and estimates only — not legal, financial or tax advice. Always check your specific award, agreement or contract, or a qualified professional, before you rely on the result.
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