When a dismissal goes wrong in Australia, two claims come up again and again: unfair dismissal and a general protections claim.
We regularly speak with employers and employees who use the two terms interchangeably. That’s understandable. Both arise under the Fair Work Act 2009 (Cth), both are lodged with the Fair Work Commission, and both usually need to be filed within 21 days of a dismissal.
But they are very different claims, with different eligibility rules, different tests and very different remedies.
For an employee, choosing the wrong claim can be fatal to your case. For an employer, misunderstanding the difference can mean underestimating your exposure, because one of these claims has no cap on compensation.
A Dismissal Happens. Then What?
Perhaps an employee has just been let go after raising concerns about their pay. Or a business has dismissed someone during probation and assumed that means no claim can be made.
In both situations, the first question is the same: which claim, if any, actually applies? That depends on what the complaint is really about.
Unfair dismissal asks whether the dismissal was falr. Was there a valid reason, and was the process reasonable?
General protections asks why the employer acted. Was the dismissal because the employee exercised a workplace right, took leave, made a complaint, or has a protected attribute like pregnancy, disability or age?
A dismissal can follow a perfect process and still breach the general protections. It can also be free of any unlawful reason and still be unfair.
Unfair Dismissal in Australia: The Basics
Unfair dismissal is covered by Part 3-2 of the Fair Work Act. A dismissal is unfair if it was harsh, unjust or unreasonable, was not a genuine redundancy and, for small businesses, did not comply with the Small Business Fair Dismissal Code.
Not everyone is eligible. To bring a claim, an employee must:
- have completed the minimum employment period (6 months, or 12 months in a small business with fewer than 15 employees);
- be covered by a modern award or enterprise agreement, or earn less than the high income threshold ($190,100 from 1 July 2026); and
- lodge their application with the Fair Work Commission within 21 days of the dismissal taking effect.
The process is relatively quick and informal. Most claims settle at a confidential conciliation. If a claim succeeds, compensation is capped at the lesser of 26 weeks’ pay or half the high income threshold, which is $95,050 for dismissals from 1 July 2026. It cannot include anything for hurt or distress.
General Protections: A Wider Net, Higher Stakes
General protections claims sit in Part 3-1 of the Fair Work Act, and they work very differently.
There is no minimum employment period and no high income threshold. An employee dismissed in their first week can claim. So can a senior executive earning well above the threshold. In many cases, independent contractors and even prospective employees are protected too.
Two features make these claims particularly serious for employers:
- The reverse onus of proof. Once an employee alleges they were dismissed for a prohibited reason, the employer is presumed to have acted for that reason unless it proves otherwise. The decision-maker usually needs to give evidence of their true reasons, and the paper trail needs to support them.
- Uncapped compensation. Remedies can include economic loss, compensation for hurt and humiliation, and civil penalties. Penalties can potentially apply to individuals like directors or HR managers personally.
The trade-off is process. A general protections dismissal claim starts with a Fair Work Commission conference, but if it doesn’t resolve, it generally proceeds to the Federal Circuit and Family Court. That is slower, more formal and more expensive than Commission arbitration.
The 21-day deadline still applies to dismissal claims. Adverse action that falls short of dismissal, such as a demotion, cut hours or discrimination, can generally be pursued for up to six years.
Which Claim Applies?
You cannot bring both. The Fair Work Act prevents pursuing multiple remedies for the same dismissal, so the choice matters.
In broad terms:
- Unfair dismissal usually suits eligible employees whose core complaint is a flawed process or unjustified reason: no warnings, no chance to respond, or a punishment out of proportion to the conduct.
- General protections usually suits workers who are ineligible for unfair dismissal (too short a tenure, or above the threshold), whose dismissal followed a complaint, injury, leave or discrimination, or whose losses would exceed the unfair dismissal cap.
The right answer depends on eligibility, evidence and what outcome you actually want. It also needs to be worked out well inside the 21-day window.
What This Means for Employers
Most claims we see don’t arise because an employer set out to do the wrong thing. They arise because a dismissal was rushed, poorly documented, or made shortly after an employee raised a complaint, creating exactly the timeline a general protections claim is built on.
Before dismissing, it’s worth asking:
- Is there a valid, documented reason?
- Has the employee had a genuine opportunity to respond?
- Has the employee recently made a complaint, taken leave or asserted an entitlement? And can we show the decision is independent of that?
The cost of getting advice before a termination is almost always less than the cost of defending a claim after one.
Need Advice on a Dismissal?
Whether you’re an employee deciding between an unfair dismissal claim and a general protections claim, or an employer responding to one, Prosper Law’s emplovment lawvers act for both sides across Australia on a fixed-fee basis.
Contact our team or call 1300 003 077. And remember, the 21-day clock starts the day the dismissal takes effect.
About the Author
Farrah Motley
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