Employees who have been dismissed from their employment may have legal options available to challenge that decision, two of the most common avenues, being Unfair Dismissal and General Protections Applications.
While both fall under the national industrial relations framework, the Fair Work Act 2009 (Cth) (the FW Act) they address different legal grounds for disputing a termination. Understanding the distinction between the two is essential when determining the most appropriate course of action following a dismissal.
Unfair Dismissal vs General Protections – What’s The Difference?
Unfair dismissal applies when an employee is terminated in a harsh, unjust or unreasonable manner. It focuses on the fairness of the dismissal process itself. General protections claims relate to terminations that breach workplace rights, such as protection from discrimination, coercion or adverse action for exercising a workplace right. Understanding the difference is essential, as the criteria, time limits and remedies under each pathway are distinct.
An Unfair Dismissal May Look Like:
An employee is terminated after being late to work three times in one month. However, no formal warnings were given, and the lateness was due to public transport delays. The employer did not follow a fair process or consider the employee’s explanation. This may constitute unfair dismissal, as the termination could be considered harsh and procedurally unfair.
A General Protections Dismissal May Look Like:
An employee makes a formal complaint about unsafe work conditions. A week later, they are dismissed without explanation. If the dismissal is connected to the complaint, it may be a general protections breach, specifically, adverse action taken because the employee exercised a workplace right to raise safety concerns.
Unfair Dismissal & Termination
A dismissal may be considered unfair treatment if:
- It was harsh, unjust or unreasonable, such as no valid reason given, or the penalty was too severe for the conduct;
- It was not consistent with the Small Business Fair Dismissal Code (the Fair Dismissal Code), which applies to employers with fewer than 15 employees;
- It was procedurally unfair, and the employer failed to provide warnings, or a chance to respond; or
- It was not a case of genuine redundancy, because the role still exists, or redeployment was not considered.
How Is Unfair Dismissal Proven?
Proving unfair dismissal involves demonstrating that the termination was harsh, unjust or unreasonable. The Fair Work Commission (the Commission) assesses whether proper procedures were followed, valid reasons were provided, and if employees had opportunities to respond. Different rules apply for genuine redundancies and small business employers, ensuring fairness based on the circumstances of each case.
Harsh, Unjust or Unreasonable
The Commission looks at whether the dismissal was procedurally fair, if a valid reason was given, and whether the employee was warned or given a chance to respond. Personal factors like age or long service may also be relevant.
Genuine Redundancy
For a dismissal to be a genuine redundancy, the role must no longer be needed, consultation must occur (if required by an award or agreement), and reasonable efforts must be made to redeploy the employee.
Small Business Employers
Small businesses must follow the Fair Dismissal Code. This allows immediate dismissal for serious misconduct or, in performance cases, requires warnings and a chance to improve. The Commission applies this code strictly in unfair dismissal claims.
What Evidence Is Required To Prove Whether A Dismissal Was Unfair?
Employers should keep detailed records, including warning letters, meeting notes, performance reviews, emails, and incident reports. These help demonstrate that the proper process was followed and that the dismissal was based on valid, documented reasons.
Employees can support their claim by providing emails, texts, rosters, witness statements, or notes showing a lack of warnings, unfair treatment, or sudden dismissal. Documentation showing a strong work history can also help.
What Are the Remedies?
If unfair dismissal is proven, the Commission may order compensation (capped at 26 weeks pay) or reinstatement. In rare cases, other remedies like restoring lost entitlements may apply.
How Is A Claim Made?
An employee must file an unfair dismissal application with the Commission within 21 days of dismissal. This is usually done online, and a filing fee of $89.70 applies (indexed annually and fee waivers are available in some cases).
How Is A Claim Responded To?
Employers must respond within 7 days of receiving notice from the Commission. This includes completing a formal response form and providing supporting documents. A conciliation meeting is usually the first step in resolving the matter.
General Protections & Termination
General protections provisions under the FW Act protect employees from adverse action due to:
- Exercising workplace rights, including making complaints, requesting flexible work, taking leave or accessing entitlements under a law or agreement
- Industrial activity, such as joining a union, attending industrial action, or choosing not to participate
- Discrimination on the basis of attributes like race, sex, disability, age, religion and family responsibilities
- Temporary absence due to illness or injury (where covered by the FW Act)
- Refusing unlawful activity or asserting a legal right not to engage in it
What Evidence Is Required To Prove Whether A General Protections Dismissal Occurred?
General protections dismissal claims are proven by showing that a person was dismissed because they exercised a workplace right, engaged in industrial activity, or were protected from unlawful discrimination. The legal process is slightly different from unfair dismissal and places a reverse onus of proof on the employer.
An Employee Must Establish A Link
The employee needs to show that they:
- Exercised a workplace right (made a complaint, took personal leave, requested flexible work).
- Participated in industrial activity (union involvement, etc).
- Were protected from adverse action based on a protected attribute (race, sex, pregnancy, age, disability).
Then, they must allege that this was the reason (or part of the reason) for the dismissal.
Reverse Onus On The Employer
Once the claim is made, the employer must prove that the dismissal was not the substantial or operative reason. This is the key difference between unfair dismissal and general protection applications.
Employers often do this by:
- Providing clear evidence of a valid, unrelated reason for dismissal (performance issues, misconduct, etc).
- Showing they followed a fair process (warnings, investigations, documentation).
- Demonstrating that the decision-maker was not motivated by the protected reason.
Evidence Considered Includes:
- Emails, meeting notes, performance reviews and complaint records.
- Timing of events (complaint made, then dismissed shortly after).
- Consistency in the employer’s explanation.
- Witness evidence or affidavits from relevant people.
- Any written policies or procedures were followed.
What Are the Remedies?
If a general protections dismissal claim is successful, several remedies may be available. The most claimed is reinstatement, where the employee is returned to their former role if appropriate. If reinstatement or reemployment isn’t practical, the Commission or court may award compensation, including lost wages, unpaid entitlements and in some cases, damages for distress or humiliation.
There is no cap on compensation in general protections matters, unlike unfair dismissal. Civil penalties may also apply, currently up to $18,780 for individuals and $93,900 for corporations. In some cases, non-financial remedies like a formal apology or a statement of service may also be ordered.
How Is A General Protections Claim Made?
To start a general protections dismissal claim, the employee must lodge Form F8 with Commission within 21 days of the dismissal taking effect. This deadline is strictly enforced. A filing fee (currently $87.20) applies, though fee waivers may be available in cases of financial hardship.
Once lodged, the Commission will usually schedule a conciliation conference. This is a confidential, informal opportunity for both parties to resolve the dispute with the assistance of a conciliator, without proceeding to a formal hearing or litigation.
How Is a Claim Responded To?
Once the Commission notifies the employer of a general protections claim, the employer must respond using Form F8A, generally within seven (7) calendar days. The response should clearly set out the employer’s explanation for the dismissal and directly address the allegations made.
Where relevant, supporting documentation, such as performance records, emails or disciplinary notes, should be included. The employer will participate in the conciliation conference and, if no resolution is reached, may be required to engage in a more formal legal process, either before the Commission or in a court.
Can Someone Apply For Both Unfair Dismissal And General Protections?
Employees can sometimes be eligible to file for both, however, as these are alternative legal pathways, only one can be pursued. If an employee has initially filed for both, one claim will need to be withdrawn within 21 days to pursue the other avenue if more appropriate.
Other Considerations For Unfair Dismissal vs General Protections Claims
When considering unfair dismissal or general protections claims, it’s essential to understand key factors like eligibility, time limits, income thresholds and whether your situation involves contractors or small businesses.
Minimum Employment Period
Unlike unfair dismissal claims, general protections dismissal claims do not require the employee to meet the usual minimum period of employment (6 months for most businesses, 12 months for small businesses).
Independent Contractors
Independent contractors can still access general protections, provided the claim involves adverse action due to a protected attribute or activity. However, they are not eligible for unfair dismissal claims.
Income Threshold
There is no income threshold for general protections dismissal claims. This differs from unfair dismissal, which excludes high-income earners not covered by an award or agreement. The high-income threshold for unfair dismissal claims in Australia is currently $183,100 per year (before tax), as of July 1, 2025.
Employees earning above this amount generally cannot make unfair dismissal claims, unless they are covered by an award or enterprise agreement. However, this threshold can be updated annually, so it’s important to check the latest figures.
Additional Penalties for Workplace Discrimination
If the claim involves discriminatory dismissal (based on race, gender or disability), courts may impose additional civil penalties alongside compensation due to breaches of anti-discrimination provisions.
Compensation Amounts
Compensation for general protection claims is uncapped. It can include lost wages, superannuation, and damages for emotional distress. Penalties can also be awarded against the employer in addition to compensation. Compensation is generally capped for unfair dismissal claims. The Fair Work Commission can order reinstatement or payment of lost wages, but the total compensation is usually limited to 6 months’ pay.
Unlike general protections claims, penalties are rarely, if at all, awarded in unfair dismissal cases. Compensation, including lost earnings and benefits, aims to put the employee back in the position they would have been in if not unfairly dismissed.
Time Limits For Unfair Dismissal or General Protections Claim
Claims must be filed within 21 days of the dismissal. This timeframe is strict, and late applications are only accepted in exceptional circumstances.
Will It End Up in Court?
Not always. Most matters begin with conciliation through the Commission. If unresolved, the general protections claims may proceed to the Federal Circuit and Family Court of Australia or the Federal Court of Australia (depending upon the amount of damages claimed), though many settle beforehand.
How Stevens & Associates Can Assist
Employment law matters can be complex and challenging to address. Whether you’re an employee, employer or independent contractor, our skilled employment lawyers are here to help you understand your rights and options. Contact us today for expert advice and support tailored to your unique employment situation.
