If you have been dismissed, your dismissal may have been unfair, or in breach of a general protection. If that is the case, you may be able to make a claim for either unfair dismissal or general protections dismissal. You cannot make both claims.
You may even have other options such as a:
- discrimination claim (if you have been discriminated against at work)
- bullying claim (if you are experiencing any workplace bullying).
If you believe you haven't been paid all your wages of other entitlements by your employer, you can also make a claim against them. You can still make this claim even if you have started an unfair dismissal or general protections dismissal claim. You can also make a claim if you resigned or are still working for the employer.
If you have been dismissed (sacked) from your job, you may be able to make a claim that
- your dismissal was unfair or
- that you were dismissed in breach of a general protection.
Either claim must be made to the Fair Work Commission within 21 days of the date your employment was terminated. You cannot claim for both unfair dismissal and dismissal in breach of a general protection.
The main differences between an unfair dismissal and a general protections dismissal claim are listed below:
Unfair dismissal applications are usually finalised faster than general protections applications. In a general protections dismissal application you may need to apply to the Federal Court of Australia or the Federal Circuit and Family Court of Australia before orders can be made in your case.
You need to have been employed for a certain amount of time before you can make an unfair dismissal application. There is no minimum time you need to be employed to make a general protections dismissal application.
If you earn over a certain amount, you may not be able to make an unfair dismissal application. There is no maximum earnings amount for making a general protections dismissal application.
Only employees can make an unfair dismissal application. Both employees and some independent contractors may be able to make a general protections dismissal application.
Casual employees are usually not able to make unfair dismissal applications (however casual employees that work regular hours may still be able to apply). It is possible for all types of casual employees to make a general protections dismissal application.
Unfair dismissal applications are heard in the Fair Work Commission (the Commission), which is a tribunal (a type of court) that only deals with employment issues. General protections dismissal applications are conciliated at the Commission but if they don't settle, the case must be continued in the Federal Circuit and Family Court of Australia, unless both parties agree to a hearing (arbitration) in the Commission. The Federal Circuit and Family Court of Australia has far more formal and complex procedures than the Commission.
There is a cap on how much compensation you can get if you make an unfair dismissal application. There is no cap on how much compensation you can get if you make a general protections application.
It is generally more expensive to run a case in the Federal Circuit and Family Court of Australia than it is to run a case at the Commission.
For more information, see Unfair dismissal and General protections dismissal.
Before deciding what kind of application to make, you should get legal advice. You may be able to choose whether to make an unfair dismissal application or a general protections dismissal application.
You may even have other options, such as a:
- discrimination claim (if you have been discriminated against at work)
- bullying claim (if you are experiencing any workplace bullying).
You should get legal advice about your options
If you were dismissed, resigned or are still working for your employer, and you are owed money for unpaid wages and entitlements, you can make a claim even if you have also made an unfair dismissal claim or breach of general protections claim.
If you and your employer come to an agreement about a dismissal claim, and your employer agrees to pay you some money, you should get legal advice about:
- whether the payment includes any or all of your unpaid entitlements
- whether the agreement stops you from making a further claim for unpaid entitlements.
For more information about wages and entitlements and what you can do if you are owed money, see Wages and entitlements.
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