How to respond to an unfair dismissal claim (employer)
When an employer is served with a Fair Work Commission unfair dismissal application (Form F2), they must respond by lodging Form F3 within 7 days. The response is governed by Part 3-2 of the Fair Work Act 2009 (Cth) and the Fair Work Commission Rules 2024 (Cth). The matter then proceeds to conciliation.
The framework
Unfair dismissal is governed by Part 3-2 (sections 380-405) of the Fair Work Act 2009 (Cth). Procedure is set out in the Fair Work Commission Rules 2024 (Cth). Jurisdictional thresholds include eligibility (section 382) and the small business code (section 388).
The process
Read the F2 application carefully
Read the Form F2 (Application for Unfair Dismissal Remedy) carefully. Identify the dismissal date, the reason given, the relief sought, and any factual claims that are disputed.
Calendar the 7-day response deadline
The employer must file Form F3 (Employer's Response) within 7 days of being notified of the application. Late responses can be accepted in limited circumstances but should be avoided.
Assess jurisdictional objections
Consider whether the employee was eligible to claim under section 382 (employed more than minimum employment period, earning less than the high income threshold or covered by a modern award/enterprise agreement). Jurisdictional objections can result in dismissal of the claim.
Assemble the dismissal documentation
Gather the employment contract, performance management records, warnings, investigation notes, termination letter, and any complaint or misconduct evidence relevant to the dismissal decision.
Apply the section 387 criteria
Section 387 of the Fair Work Act 2009 sets out the criteria the FWC considers — valid reason for dismissal, notification, opportunity to respond, support person, warnings (where applicable), procedural fairness, and size of business.
Complete Form F3
Complete the Employer's Response form, raising any jurisdictional objections, setting out the reason for dismissal, and addressing the section 387 criteria. File via the FWC online portal.
Attend the conciliation conference
The FWC schedules a confidential conciliation conference (usually by phone). Most unfair dismissal matters settle at conciliation, often with a confidential settlement payment in lieu of reinstatement.
Prepare for any jurisdictional hearing
If jurisdictional objections are raised, the FWC will hold a separate hearing to determine eligibility before any merits hearing. Prepare witness statements and documentary evidence.
Merits hearing (if not resolved)
If unresolved, the matter proceeds to a merits hearing. The FWC considers the section 387 criteria and decides whether the dismissal was harsh, unjust, or unreasonable under section 385.
Remedy and appeal
If the dismissal is found unfair, the FWC can order reinstatement (section 391) or compensation (section 392, capped at 6 months' wages or the high income threshold). Appeal to the Full Bench is by leave under section 604.
Forms and templates
- Form F3 — Employer's Response to an Unfair Dismissal Application
- Small Business Fair Dismissal Code Checklist
Common mistakes
- Missing the 7-day F3 response deadline
- Not raising jurisdictional objections at the response stage
- Failing to apply procedural fairness in the original dismissal
- Not preparing for conciliation with realistic settlement parameters
- Inadequate documentation of the dismissal process
Get this process right with Quillio
Quillio can help draft the F3 response, prepare a chronology of the dismissal, and structure submissions against the section 387 criteria. See /practice-areas/employment-law or start a free trial.
This guide is general information for employers, not legal advice. Unfair dismissal claims can result in significant financial and reputational consequences. Engage an employment lawyer.
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