3 checks to claim unfair dismissal on probation in Australia

29 September 2026

Yes, you can claim unfair dismissal while on probation, but only if you clear three checks first: you have reached the minimum employment period, the reason for dismissal was not one of the automatically protected grounds, and you can lodge within 21 days. Miss any one of these and your options narrow fast, though other claims may still be open.

TL;DR:

• Employees must have at least six months of continuous service, or 12 months for small businesses with fewer than 15 employees, to claim unfair dismissal during probation.
• Dismissals based on discrimination, exercising workplace rights, or breaches of protection laws can be challenged from day one of employment, regardless of probation status.
• The claim deadline is strict, requiring lodgment of Form F2 within 21 calendar days of dismissal, except in exceptional circumstances.
• Evidence collection is crucial; secure all relevant communication, payslips, and records immediately to support your case before filing.
• Fair Work Commission may order reinstatement or compensation if your dismissal is deemed unfair, but reinstatement is less common in long-term or broken relationships.

Table of Contents

• Eligibility and minimum employment period
• When a probation dismissal can still be unfair or unlawful
• How to apply: deadlines, forms and the Fair Work Commission process
• Gathering evidence and preparing your case
• Likely outcomes and compensation for unfair dismissal
• Alternatives and next steps if unfair dismissal is not the right fit
• What to prioritise in the first 72 hours
• Sources
• FAQ

Eligibility and minimum employment period

Whether you can bring an unfair dismissal claim comes down to the minimum employment period. For most employers this is six months of continuous service; for a small business employer, defined as fewer than 15 employees counting associated entities, it stretches to 12 months, according to the Fair Work Commission. Probation labels in your contract do not override this rule: what matters is your actual service length on the day your dismissal took effect.

Working out that effective dismissal date is not always straightforward. Notice periods, payment in lieu of notice and garden leave can all push the qualifying date later than the day you stopped attending work, sometimes tipping someone from ineligible to eligible.

• Count continuous service from your first day, including any probationary period stated in your contract.
• Include periods of authorised leave, but exclude unauthorised absences when calculating continuity.
• Casual employees may still qualify if their engagement was regular and systematic with a reasonable expectation of continuing work.

When a probation dismissal can still be unfair or unlawful

Even once you clear the minimum employment period, the Commission does not simply take your side. It weighs whether there was a valid reason connected to your capacity or conduct, whether you were told about the concern, whether you got a chance to respond, and whether the whole process was harsh, unjust or unreasonable, per the Commission's unfair dismissal guidance.

Some grounds bypass the service threshold altogether. Discrimination on the basis of a protected attribute, dismissal for exercising a workplace right, and other general protections breaches can be challenged from day one of employment, regardless of probation status.

• Dismissal linked to race, sex, age, disability or another protected attribute has no minimum service requirement.
• Sacking someone for taking sick leave, raising a complaint or joining a union can fall under general protections instead.
• Forced resignation, where employer conduct effectively pushed you out, is treated as a dismissal rather than a voluntary exit.

Some unfair dismissal applications end up requiring a formal decision rather than settling early, and even where the ordinary unfair dismissal test does not apply, the Commission notes that discrimination and general protections routes remain open. Poor performance management during probation, if undocumented and abrupt, often looks procedurally unfair once tested against these factors.

How to apply: deadlines, forms and the Fair Work Commission process

The clock starts the moment your dismissal takes effect, and you have 21 calendar days to lodge with the Commission. This deadline is strict: the Commission's deadlines page confirms extensions are granted only in exceptional circumstances, such as a serious illness or an error by a paid agent acting on your behalf.

1. Complete and submit Form F2, the unfair dismissal application, within the 21 day window.
2. Wait for the Commission's preliminary consideration, which checks jurisdiction and basic eligibility.
3. Attend conciliation, an informal conference aimed at settling the matter without a hearing.
4. If conciliation fails, the matter proceeds to a conference or formal hearing before a member.

• Conciliation is usually conducted by phone and typically happens within weeks of lodging, not months.
• Most matters that proceed to conciliation are resolved there rather than going to a full hearing, based on the Commission's own process description.
• Bring a clear timeline and your key documents to conciliation, since the conciliator will ask pointed questions about both.

Gathering evidence and preparing your case

Whatever route you take, evidence decides outcomes. Start collecting documents the moment you are told you are being dismissed, before memories fade or messages get deleted.

• Your employment contract, including any probation clause and notice terms.
• Payslips and rosters showing your start date, hours and continuity of service.
• Performance notes, warnings, or the absence of any, plus the termination letter itself.
• Emails, text messages and any witness names who saw or heard the dismissal conversation.

Your exact start date and the notional dismissal date matter enormously, since notice or a payment in lieu of notice can shift the effective date and, with it, your eligibility, an issue examined in Fair Work Commission case analysis on the effective date of termination.

Pro Tip: Screenshot or forward every relevant message to a personal e-mail account the same day, and note the date and time you received your termination letter or verbal notice.

Likely outcomes and compensation for unfair dismissal

If the Commission finds your dismissal unfair, it can order reinstatement, compensation, or other orders to remedy the loss, though reinstatement is uncommon where the employment relationship has broken down beyond repair.

Compensation, when awarded, reflects your lost remuneration less any amount you have earned or could reasonably have earned since, and it is not automatic just because a dismissal was found unfair.

• Reinstatement is more likely in short, otherwise straightforward employment relationships without major trust breakdowns.
• Compensation accounts for your efforts to find new work and any income already earned elsewhere.
• The Commission can also order back pay for the period between dismissal and any reinstatement.

Alternatives and next steps if unfair dismissal is not the right fit

Unfair dismissal is not your only avenue. If your dismissal involved a protected attribute or exercising a workplace right, a general protections claim may fit better, and unlike unfair dismissal, it carries no minimum service requirement at all.

If your employer says the role was made redundant, check whether it was genuine: a real redundancy requires the job to no longer be needed, proper consultation, and no reasonable redeployment option. A sham redundancy, where your duties simply continue under someone else, can still be challenged as unfair.

• Contact a union, community legal centre or employment lawyer if your situation is complex or high value.
• Move quickly regardless of which claim fits, since deadlines apply across most of these routes.
• Start organising your evidence and paperwork immediately rather than waiting for advice to begin.

What to prioritise in the first 72 hours

Get the sequence right: confirm your minimum employment period, pin down the exact effective dismissal date, then start gathering evidence while it is still fresh. Waiting even a week can cost you options.

• Secure every message and e-mail related to your employment and dismissal.
• Save payslips and roster records, and request written reasons for dismissal from your employer.
• Note down witnesses and start preparing Form F2 details if you appear eligible.

Structured preparation before conciliation tends to produce clearer, more persuasive conversations with the other side.

— Nicolas

Sources

For final verification, go directly to the Fair Work Commission for application steps, the Fair Work Ombudsman for entitlements on dismissal, and the Small Business Fair Dismissal Code if your employer is a small business. These primary sources are updated directly by the relevant bodies.

This article is general information, not a substitute for advice from a qualified lawyer. Consult a qualified legal professional about your own circumstances before acting on anything here.

• What minimum period of employment do I need to bring an unfair dismissal application? — Fair Work Commission

FAQ

Can I claim unfair dismissal during probation?

Yes, provided you have reached the minimum employment period (six months, or 12 months for a small business employer) and lodge within 21 days of dismissal, per the Fair Work Commission. If you have not reached that period, discrimination or general protections claims may still be available.

How much compensation will I get for unfair dismissal in Australia?

Compensation is not automatic and depends on your lost remuneration, minus earnings from other work since your dismissal. The Commission also weighs whether reinstatement, rather than a payment, is the more appropriate remedy.

What are the chances of winning an unfair dismissal case?

Outcomes depend heavily on evidence: a valid reason, procedural fairness and the reasonableness of the dismissal all factor into the Commission's decision, according to its unfair dismissal guidance. Well-documented cases with clear timelines and communications tend to fare better at conciliation.

Can a probationary employee be terminated immediately?

An employer can end employment during probation, but if the employee has reached the minimum employment period, ordinary unfair dismissal protections still apply. Even without that service length, dismissals involving discrimination or a protected workplace right can be challenged immediately under general protections.

← All articles

General information about the Fair Work Commission process, not legal advice about your matter. WorkForceHelp is not the Fair Work Commission and is not affiliated with it.