Key Points:
- Unfair dismissal is about how you were shown the door – was the process harsh, unjust or unreasonable?
- Unlawful termination or General Protections is about why you were let go – was it because of a protected attribute or right that the law says can’t be touched as you are protected?
If you’ve just lost your job, spotting which label fits your situation is the first step to getting the right remedy within the tight 21-day deadline.
Unfair Dismissal – The “Was It Fair?” Question
For unfair dismissal, the Fair Work Commission (FWC) looks at the whole breakup and asks: did the employer have a valid reason to terminate you, did the employer provide you with procedural fairness and was the termination harsh, unjust or unreasonable in the circumstances? If the employer did not have a valid reason, you didn’t get a fair hearing, a proper warning, or the boss pulled the trigger without a solid reason, you’re in unfair-dismissal territory.
| What matters | Details |
|---|---|
| Eligibility | Must be a national-system employee with at least 6 months’ service (12 months if your boss has <15 staff) |
| Focus | The procedure and whether the reasons stack up – performance, conduct or redundancy must be genuine |
| Where to lodge | Fair Work Commission (Form F2) within 21 days of the sacking. |
| Remedies | Reinstatement or compensation (capped at 6 months’ pay). |
Quick example:
A HR Manager for a regional manufacturer once dismissed a machine operator for repeated safety breaches. Because they documented every warning and offered training, the FWC later agreed the process was fair. The paperwork was a pain, but it saved the company a hefty payout – and kept the rest of the crew safe.
Unlawful Termination or General Protections – The “Was It Prohibited or a protected attribute?” Question
Here employment law zooms in on the reason you were fired. If it links to things like your race, pregnancy, union activity, or taking sick leave, the dismissal is automatically unlawful.
In Unlawful Termination or general protections claims under the Fair Work Act 2009 (Cth), the onus of proof is reversed. This means that if you allege adverse action due to a prohibited reason (like exercising a workplace right), the employer must prove the action such as termination was not taken for that reason, rather than the employee proving it was.
| What matters | Details |
|---|---|
| Eligibility | Covers all employees, including some State-system workers who can’t file unfair-dismissal claims |
| Focus | Prohibited grounds – discrimination, temporary illness, union membership, complaints against the boss, taking parental leave, emergency-service absences and similar |
| Where to lodge | Usually Fair Work Commission (Form F9) first; if unresolved, Federal Circuit/Federal Court |
| Remedies | Reinstatement, uncapped compensation, plus civil penalties against the employer |
Quick example:
If you’re sacked two weeks after telling your manager you’re pregnant, that smells like adverse action against you which is unlawful termination, and you can bring general protections claim in the FWC. Whether the process was “fair” is irrelevant – the reason is barred by law.
Spot-the-Difference Cheat Sheet
| Feature | Unfair Dismissal | Unlawful Termination |
|---|---|---|
| Legal test | Harsh, unjust or unreasonable | Fired for a prohibited reason |
| Minimum service | Yes – 6 or 12 months | No minimum |
| Who can claim? | National-system employees (most private-sector workers) | Anyone, incl. some State public-sector staff not covered by unfair-dismissal laws |
| Main forum | Fair Work Commission | FWC, then courts if needed |
| Compensation cap | 6 months’ pay | No statutory cap + penalties |
| Common triggers | No valid reason, no warnings, bogus redundancy | Discrimination, union activity, exercising a workplace right |
Which Path Should You Take?
- Ask why you were let go. If a protected attribute or right is involved, think unlawful termination first.
- Check your service length. Under 6/12 months? Unfair-dismissal doors are shut, but unlawful-termination doors may still be open.
- Move fast. Both claims must hit the FWC within 21 days. Miss it and the ship has probably sailed.
- Get advice. Give the friendly team at Fair Workplace Solutions a call, we’d be happy to help and can save you weeks of grief.
Losing a job hurts, but understanding the rules gives you a fair shot at justice – and maybe your old desk back. Good luck, and don’t let that 21-day clock catch you napping. Give us a call today!
