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Unfair dismissal particulars: what to set out in your claim

October 27, 2026
Unfair dismissal particulars: what to set out in your claim

The particulars of an unfair dismissal claim are the facts you put in front of the Fair Work Commission: who you are, when and how you were dismissed, why you say it was harsh, unjust or unreasonable, and what you want as a remedy. In Australia these go in Form F2, and they must reach the Commission within 21 days of the dismissal taking effect. This guide walks through what each part needs, the legal grounds the Commission applies, and where warnings and notice fit.

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TL;DR

  • You must lodge within 21 days after the dismissal takes effect, and late applications are accepted only in exceptional circumstances.
  • You need the minimum employment period (6 months, or 12 months at a small business) and must be under the high income threshold or covered by an award or agreement.
  • A dismissal is unfair when it is harsh, unjust or unreasonable, not a genuine redundancy, and, for small businesses, not consistent with the Small Business Fair Dismissal Code.
  • There is no set number of warnings before dismissal, and warnings need not be in writing. What counts is whether the process was fair in your circumstances.
  • Your Form F2 particulars should answer the employer's reasons directly and be backed by documents.

Table of Contents

Who can make a claim

Before you worry about particulars, check you are eligible. The Fair Work Ombudsman says a dismissed national-system employee can apply if they have worked for the employer for at least 6 months (12 months if the employer is a small business with fewer than 15 employees), and are covered by an award or enterprise agreement or earn below the high income threshold.

The Fair Work Commission stated the threshold as $190,100 a year for 1 July 2025 to 30 June 2026. It is indexed each 1 July, so confirm the current figure on the Commission's site. Earnings above the threshold do not automatically block you if an award or agreement covers you. Our guides on the high income threshold and the minimum employment period go deeper.

Two groups ask this often:

  • Probation. Probation does not remove your rights. What matters is whether you have served the minimum employment period, not whether your employer calls the first months a trial.
  • Casuals. A casual can claim if they meet the same period and coverage tests under the statutory counting rules. Our piece on evidence casual employees need covers regular and systematic work.

The Fair Work Ombudsman does not investigate unfair dismissal complaints. The application goes to the Commission.

The 21-day deadline

The Commission must receive your application within 21 days after the dismissal took effect. That is usually the last day of the employment contract, not necessarily the last day you worked. The Commission's eligibility tool explains that this can be your last day of work, the last paid leave day, or a later termination date given in the notice.

This is why we tell people to count from the date on the letter and the date on the payslip, then use the earlier one to be safe. See our time limit explainer for worked examples.

Can you apply late?

Sometimes, but rarely. The Commission may extend time only if it accepts there are exceptional circumstances. It looks at the reason for the delay, when you became aware of the dismissal, whether you took steps showing you disagreed with it, any prejudice to the employer, the merits of your case, and fairness compared with others in similar positions. Illness, or relying on wrong advice, can be relevant, but you should explain it fully in your application rather than assume it will be accepted.

The grounds: what makes a dismissal unfair

The Commission explains that four things must line up:

  1. You were dismissed (the employment ended on the employer's initiative, or you were forced to resign).
  2. The dismissal was harsh, unjust or unreasonable.
  3. It was not a genuine redundancy.
  4. If the employer is a small business, it was not consistent with the Small Business Fair Dismissal Code.

The three descriptors mean different things. A dismissal can be unjust where you were not guilty of what the employer alleged, unreasonable where the evidence did not support the employer's conclusion, and harsh where the consequences or punishment were out of proportion to the conduct. Your particulars should say which of these you rely on, and often it is more than one.

The section 387 criteria

Under section 387 of the Fair Work Act 2009, the Commission considers:

  • whether there was a valid reason related to your capacity or conduct;
  • whether you were notified of that reason;
  • whether you had an opportunity to respond;
  • whether you were allowed a support person in any discussion about dismissal;
  • for performance dismissals, whether you had been warned about unsatisfactory performance;
  • the size of the employer's enterprise and whether it had dedicated human resources expertise;
  • any other matters it considers relevant.

A 2022 Commission decision confirms the Commission must consider each criterion to the extent it is relevant on the facts. So your particulars should work through each one that applies, rather than simply saying "it was unfair".

Warnings: how many are enough?

There is no minimum number. Legal Aid NSW says warnings need not be in writing, and that fairness depends on the circumstances. One warning can be enough in some cases. Three written warnings can still leave a dismissal unfair if the process was a sham.

What the Commission looks for is substance:

  • Were you told what was wrong?
  • Were you told your job was at risk?
  • Did you get a genuine chance to improve, with support where appropriate?
  • Was the warning itself fair, accurate and proportionate?

A warning can be unfair where you were not told what the problem was or were never given a real chance to correct it. If you are challenging a warning letter, record the date, who delivered it, what it alleged, what you said in reply, and whether the allegations were true.

Procedural fairness must be real

In a 2024 decision, the Commission said an employer cannot provide procedural fairness merely by going through the motions when the decision to terminate was already made, whatever the employee said. If you were invited to a meeting where the outcome was plainly settled, say so, and say how you know (a termination letter drafted beforehand, for example).

Small businesses and the Code

For ordinary dismissals by a small business, the Small Business Fair Dismissal Code expects a valid reason about conduct or capacity, a warning that dismissal may follow, a chance to respond, and a reasonable opportunity to fix the problem, with assistance such as training where appropriate. You must also be allowed a support person. Summary dismissal without notice or warning is open to the employer for sufficiently serious misconduct.

Small business dismissal Code considerations

In a 2016 decision, the employer's failure to tell the employee that their job was at risk, and to let them explain or fix the problem, meant the dismissal was not consistent with the Code. Our guide to the Code and evidence shows how to document this.

Does notice make a dismissal fair?

No. Notice and fairness are separate questions. The Fair Work Ombudsman explains that most employees are entitled under the National Employment Standards to written confirmation of their last day and a minimum notice period, which can be worked or paid out instead. Giving correct notice meets that obligation. It does not answer whether there was a valid reason or a fair process.

The reverse also holds. Missing notice does not by itself prove unfair dismissal, but it may be a separate underpayment to raise with the Fair Work Ombudsman. Keep the two issues apart in your paperwork.

Misconduct, performance and redundancy

Performance. Employers can dismiss for poor performance, but section 387 points to whether you were warned and given a chance to improve. Without that, the dismissal is more exposed.

Misconduct. Conduct can justify dismissal if the employer had a valid reason and acted fairly. Serious misconduct allows summary dismissal, but the employer still needs to show the conduct occurred. Our guide to serious misconduct covers the definition.

Redundancy. A genuine redundancy is not an unfair dismissal. The Commission's test is that the job is no longer needed because of operational change, and that the employer met any consultation obligations in an award or agreement. If the role was not really redundant, or you could have been redeployed, it may not be genuine, so your particulars should set out why.

Sick leave. An employer cannot dismiss you for being absent on approved personal leave with a certificate, but they can act on a genuine incapacity to do the job. Whether a general protections claim is also available is worth checking, as explained below.

Misconduct, performance and redundancy — overview diagram

Forced resignation and disputed dismissal

If you resigned because your employer left you no real choice, the law treats it as a dismissal. If your employer says you resigned but you say you were pushed or sacked, state exactly what was said, when, and by whom, and keep any messages. Because the deadline runs from the end of employment, do not wait to resolve the dispute with your employer before lodging.

What to put in Form F2

The Commission lists Form F2 as the unfair dismissal application under section 394. The form itself asks you to describe the facts and circumstances, why you say the dismissal was unfair, your response to the employer's reasons, and whether you were counselled or warned. Attach the dismissal letter or separation certificate. The Commission sends your application and attachments to the other parties, so write it with the employer as a reader.

A strong set of particulars usually has this order:

  1. Employment facts: start date, role, award or agreement, pay, number of employees if known.
  2. Dismissal facts: date, who told you, what was said, how it was confirmed.
  3. Employer's stated reason: quote the letter or message if you have it.
  4. Your response: why the reason is wrong, unproven or disproportionate.
  5. Process: warnings, meetings, whether you could bring a support person, whether you could respond.
  6. Remedy sought: reinstatement, compensation or both.

Keep each point short and tied to a document. Our guides to Form F2 steps and filing a claim show examples.

What happens next

Per the Commission's practice note, applications are generally scheduled for conciliation. Matters that do not resolve proceed to a conference or, where appropriate, a hearing. You may seek reinstatement, a monetary amount or another remedy, and documents you send to the Commission should generally also go to the other party.

Unfair dismissal or general protections?

They are different claims. Unfair dismissal asks whether the dismissal was harsh, unjust or unreasonable. A general protections claim asks whether the employer acted for a prohibited reason, such as exercising a workplace right or a protected attribute. Eligibility, deadlines and processes differ, so check the Commission's pages for both before choosing. If you are unsure which fits, a lawyer, union or community legal centre can advise.

Perspective: why particulars decide claims

We built our service around a simple observation: most people lose ground not because their case is weak, but because their story is scattered. They remember the meeting, the text message, the warning from last year, and they struggle to tie each to a legal criterion. We use Australian legislation, Commission rules and case law to turn that pile into a structured set of particulars you can lodge yourself or hand to a lawyer, union or community legal centre. We do not predict outcomes or give legal advice, and your data stays onshore and does not train AI.

— Nicolas

Get your particulars organised

If your deadline is running, our preparation support checks eligibility, organises your evidence, and generates the Fair Work forms you need. You can also start with our eligibility guide. If you are an employer, see our summary of employer obligations when dismissing.

FAQ

How many warnings before dismissal?

There is no minimum number, and warnings do not have to be in writing. The Commission looks at whether you knew what was wrong, knew your job was at risk, and had a real chance to improve.

Can a warning be unfair?

Yes. A warning may be unfair if it was inaccurate, disproportionate, or if you were never told what the problem was or given a chance to fix it. You can respond in writing and keep a copy.

Does the Fair Work Ombudsman handle my claim?

No. The Ombudsman does not investigate unfair dismissal complaints. You apply to the Fair Work Commission using Form F2.

Is the 21 days counted from my last day worked?

Not always. It runs from when the dismissal takes effect, usually the end of the employment contract, which may be a later date than your last day of work. Use the earliest plausible date to be safe.

Sources

Article produced using AI. This is not legal advice.