Check which workplace relations system applies
These guides concern the national Fair Work system. In WA, coverage can depend on the employer's legal identity, activities and arrangements. A business structure alone may not settle the question, particularly for trusts, partnerships and not-for-profit organisations.
Do not use these checklists to decide jurisdiction or whether an action is lawful. Check official Fair Work coverage guidance, or contact us.
The basics
- Two different questions.Unfair dismissal asks whether a dismissal was harsh, unjust or unreasonable. General protections asks why you acted, and whether the reason was unlawful.
- 21 days to claim.Both claims must usually be lodged within 21 days of the dismissal taking effect. Most settle at conciliation.
- Thresholds differ.Unfair dismissal has eligibility thresholds. General protections has none, and you must prove your reason.
- Decided before the dismissal.Most claims are won or lost on your reason, your process and your records, all of which come before the dismissal.
Two claims, side by side
The same dismissal can lead to either claim, and the employee chooses which to bring.
The question
Was the dismissal harsh, unjust or unreasonable?
Who can claim
Employees who have served the minimum employment period (6 months, or 12 with a small business) and either earn under the high income threshold ($190,100 from 1 July 2026) or are covered by an award or enterprise agreement.
Protected reasons
Reasons alone don't decide it. The Commission weighs your reason and your process together.
Time limit
21 days after the dismissal takes effect. Late claims are accepted only in exceptional circumstances.
Who proves what
The Commission weighs whether there was a valid reason, whether the employee was told it and could respond, and whether the process was fair.
Where it goes
Conciliation first, then a Commission hearing or conference if it doesn't settle.
What's at stake
Reinstatement, or compensation capped at the lesser of 26 weeks' pay and $95,050 (from 1 July 2026).
The question
Did you take adverse action, such as dismissal, because of a protected reason?
Who can claim
Any employee. There's no minimum period of service and no income cap.
Protected reasons
Exercising a workplace right (such as complaining or taking leave), union membership or activity, a protected attribute such as age, sex, disability or pregnancy, or a temporary absence through illness or injury.
Time limit
21 days after a dismissal takes effect. Claims about other adverse action, short of dismissal, aren't limited to 21 days.
Who proves what
Once the employee alleges a protected reason, the law presumes it unless you prove otherwise. Evidence from the person who made the decision is critical.
Where it goes
A Commission conference first, then court. The Commission can arbitrate instead if both sides agree.
What's at stake
Uncapped compensation, reinstatement and civil penalties.
Changes from 7 July 2026: the Commission can hold a general protections dismissal conference without first deciding whether a dismissal happened, and has broader powers to deal with weak claims early.
| Topic | Unfair dismissal | General protections |
|---|---|---|
| The question | Was the dismissal harsh, unjust or unreasonable? | Did you take adverse action, such as dismissal, because of a protected reason? |
| Who can claim | Employees who have served the minimum employment period (6 months, or 12 with a small business) and either earn under the high income threshold ($190,100 from 1 July 2026) or are covered by an award or enterprise agreement. | Any employee. There's no minimum period of service and no income cap. |
| Protected reasons | Reasons alone don't decide it. The Commission weighs your reason and your process together. | Exercising a workplace right (such as complaining or taking leave), union membership or activity, a protected attribute such as age, sex, disability or pregnancy, or a temporary absence through illness or injury. |
| Time limit | 21 days after the dismissal takes effect. Late claims are accepted only in exceptional circumstances. | 21 days after a dismissal takes effect. Claims about other adverse action, short of dismissal, aren't limited to 21 days. |
| Who proves what | The Commission weighs whether there was a valid reason, whether the employee was told it and could respond, and whether the process was fair. | Once the employee alleges a protected reason, the law presumes it unless you prove otherwise. Evidence from the person who made the decision is critical. |
| Where it goes | Conciliation first, then a Commission hearing or conference if it doesn't settle. | A Commission conference first, then court. The Commission can arbitrate instead if both sides agree. |
| What's at stake | Reinstatement, or compensation capped at the lesser of 26 weeks' pay and $95,050 (from 1 July 2026). | Uncapped compensation, reinstatement and civil penalties. |
Changes from 7 July 2026: the Commission can hold a general protections dismissal conference without first deciding whether a dismissal happened, and has broader powers to deal with weak claims early.
Before you dismiss: what the Commission will look at
Tick what you could prove today. This won't tell you whether a dismissal is fair. It shows where the Commission will look.
Why it matters
A sound, defensible reason, not a pretext. It's the first thing the Commission considers.
Why it matters
The reason has to be put to the employee clearly, before the decision is made.
Why it matters
A meeting where the outcome is already decided doesn't count as a chance to respond.
Why it matters
Employees can have a support person at discussions about dismissal.
Why it matters
Warnings should be specific and documented, and give a reasonable chance to improve.
Why it matters
A genuine redundancy means the job itself has gone. Refilling the role soon after undermines it.
Why it matters
Most awards and agreements require consultation about major change. Skipping it can make a redundancy not genuine.
Why it matters
In 2025 the High Court confirmed the Commission can ask whether you could have redeployed people into work done by contractors.
Why it matters
NES notice depends on service and age. Small business employers are generally exempt from NES redundancy pay, but exceptions can apply when a larger business downsizes before bankruptcy or liquidation. An award or agreement may also require redundancy pay.
Why it matters
If it isn't written down, expect an argument about whether it happened.
Why it matters
If you followed the Code, the dismissal is treated as fair. Keep evidence, such as warnings and the Code checklist.
Tick each point you could prove today.
A claim has landed: what happens next
The first week matters most. Step through the process.
The employee lodges a claim
Within 21 days of the dismissal
What the law requires
The employee applies to the Fair Work Commission: Form F2 for unfair dismissal, Form F8 for general protections. Late claims are accepted only in exceptional circumstances.
Where employers slip
Assuming a claim is out of time without checking exactly when the dismissal took effect.
You respond
Ordinarily 7 days to respond
What the law requires
For unfair dismissal, your response (Form F3) is due within 7 days of being served. Raise any objection here, such as the minimum employment period, the Small Business Fair Dismissal Code or genuine redundancy. For general protections dismissal claims, use Form F8A and ordinarily respond within 7 days. Check the Commission's correspondence and any directions immediately.
Where employers slip
Missing the deadline, or lodging a response that concedes points you wanted to argue.
Conciliation or conference
Private and confidential
What the law requires
A conciliator or Commission member helps both sides try to settle. Most claims end here.
Where employers slip
Arriving without a clear position, the key documents or a settlement range.
If it doesn't settle
14 days to go to court
What the law requires
Unfair dismissal: the Commission decides after a hearing or determinative conference. General protections: the Commission issues a certificate, and the employee has 14 days to start a court case, unless both sides agree to Commission arbitration.
Where employers slip
Underestimating the reverse onus in general protections. You must prove the reason you acted.
The outcome
What the law requires
Unfair dismissal: reinstatement, or compensation capped at the lesser of 26 weeks' pay and $95,050. General protections: uncapped compensation, reinstatement and civil penalties.
Questions employers ask us
The general position only. Every answer turns on your facts, your award or agreement, and your records.
They resigned. Can they still claim?
What the law looks at
- Yes, if your conduct, or your managers’ conduct, forced the resignation.
- The Commission looks at whether the employee had a real choice.
- A resignation given in the heat of the moment needs careful handling before you accept it.
They earn more than $190,100. Are we safe from a claim?
What the law looks at
- Only from unfair dismissal, and only if no award or enterprise agreement covers them.
- General protections, discrimination and breach of contract claims are still open.
- The high income threshold is indexed every 1 July.
Can a casual bring an unfair dismissal claim?
What the law looks at
- Only if they worked on a regular and systematic basis, reasonably expected that to continue, and served the minimum employment period.
- General protections claims are open to all casuals.
Do general protections only apply when someone is dismissed?
What the law looks at
- No. Any adverse action counts if it’s for a protected reason, such as demoting someone, changing their duties to their detriment, or refusing a promotion.
- Claims about action short of dismissal aren’t limited to 21 days.
What does the Small Business Fair Dismissal Code require?
What the law looks at
- For summary dismissal: a reasonable belief that the conduct was serious enough, such as theft, fraud, violence or a serious safety breach.
- For other dismissals: tell the employee why they’re at risk, warn them, and give them a chance to respond and to improve.
- Evidence that you followed it, such as warnings, notes and the Code checklist.
Discuss your results with Vantage
Official sources
Check the current rules and how they apply to your circumstances.