Unfair Dismissal, General Protections, or Unlawful Termination?
Unfair dismissal is not the only type of claim available when employment ends, and choosing the right one matters. Lodging the wrong type of claim can waste time you don’t have.
- Unfair dismissal: For dismissals that are harsh, unjust, or unreasonable, lodged with the Fair Work Commission within 21 days.
- General protections (adverse action): Under Part 3-1 of the Fair Work Act, these claims apply where you were dismissed for a prohibited reason, such as exercising a workplace right, making a complaint, or because of a protected attribute. General protections claims involving dismissal also have a 21-day deadline but can offer uncapped compensation, making the choice of claim significant.
- Unlawful termination: A separate category for employees not covered by the general protections regime, where dismissal occurred for a discriminatory or otherwise unlawful reason.
Because these claims have different requirements, deadlines, and potential outcomes, getting early advice on which one fits your circumstances is important. We help you identify the strongest available claim.
For Employers: Responding to an Unfair Dismissal Claim
If an employee has lodged an unfair dismissal claim against your business, it’s important to respond properly and within the required timeframe. A claim doesn’t mean you’ve done anything wrong, but it does need to be handled carefully.
We help employers by assessing the merits of the claim and your prospects, preparing your response to the Fair Work Commission, representing you at conciliation and, if necessary, at a formal hearing, and advising on whether settlement or defending the claim is the better commercial course. We also help employers get their dismissal processes right in the first place, so claims are less likely to succeed or arise at all. This connects closely with our employment contracts and broader employment law services.
How the Process Works
Most unfair dismissal matters follow a similar path. The employee lodges an application with the Fair Work Commission within 21 days. The Commission then arranges a conciliation, an informal, confidential discussion (usually by phone) where a conciliator helps both sides try to reach a settlement. The majority of claims resolve at this stage. If conciliation doesn’t resolve the matter, it proceeds to a formal determination by the Commission, where evidence is heard and a binding decision is made. We can represent you at every stage, from lodging or responding to a claim through conciliation and, if needed, a formal hearing.
Why Choose Hills Solicitors
- Local knowledge since 1894: We’ve advised Hunter Valley employees and employers for over 130 years and understand the local business landscape.
- We act for both sides: Because we act for both employees and employers, we understand how these disputes work from every angle.
- We move quickly: With a 21-day deadline, responsiveness matters. We assess your position promptly so you don’t lose your right to act.
- Practical, plain-language advice: We explain your options honestly, including a realistic view of your prospects, so you can make an informed decision.
Frequently asked questions about unfair dismissal
How long do I have to make an unfair dismissal claim?
You have 21 days from the date your dismissal takes effect to lodge an application with the Fair Work Commission. This deadline is strict, and extensions are only granted in exceptional circumstances. If you think you may have been unfairly dismissed, it’s important to get advice as soon as possible, because the time passes quickly.
How much compensation can I get for unfair dismissal?
Compensation for unfair dismissal is capped at the lesser of 26 weeks’ pay or half the high income threshold. It is based on lost earnings and does not include any amount for distress or humiliation. In many cases, reinstatement is the primary remedy the Commission considers, with compensation ordered where reinstatement is not appropriate. General protections claims, by contrast, can offer uncapped compensation.
Am I eligible to claim unfair dismissal?
To be eligible, you generally need to have completed a minimum employment period of six months, or 12 months if you work for a small business with fewer than 15 employees. You must be a national system employee, and if you earn above the high income threshold (currently $175,000, indexed annually) without Award or agreement coverage, you generally cannot claim. Casual employees can claim only if their employment was regular and systematic with a reasonable expectation of continuing.
Can I be dismissed without warning?
It depends on the circumstances. For serious misconduct, an employer may be able to dismiss without notice or prior warning. For dismissals relating to performance, however, an employee would usually be entitled to warnings and an opportunity to improve. A dismissal without any warning where warnings were warranted may be procedurally unfair, which can support a claim.
What is the Small Business Fair Dismissal Code?
The Small Business Fair Dismissal Code is a checklist that applies to employers with fewer than 15 employees. If a small business employer follows the Code when dismissing an employee, the dismissal is generally considered fair. Because so many Hunter Valley employers are small businesses, the Code is often central to unfair dismissal matters in the region, both for employees assessing a claim and employers defending one.
What happens at a Fair Work conciliation?
Conciliation is an informal, confidential discussion, usually held by telephone, where a Fair Work conciliator helps the employee and employer try to reach a settlement. It is not a hearing, and no decision is imposed. Most unfair dismissal claims resolve at conciliation. If the matter doesn’t settle, it proceeds to a formal determination by the Commission.
Does Hills Solicitors act for employees or employers?
Both. We act for employees who believe they’ve been unfairly dismissed and for employers responding to claims, across Maitland and the Hunter Valley, including East Maitland, Rutherford, Thornton, Kurri Kurri, Cessnock, and the broader Newcastle region. Acting for both sides gives us a clear understanding of how these disputes work.
Think You’ve Been Unfairly Dismissed? Act Now
With only 21 days to lodge a claim, time is critical. Whether you’re an employee who believes your dismissal was unfair or an employer facing a claim, the sooner you get advice, the more options you have and the better positioned you’ll be.
Hills Solicitors has been advising Hunter Valley employees and employers since 1894. We’ll assess your situation quickly and honestly, explain your options, and act within the deadline to protect your position.
Book a consultation with our employment law team today, or call us on (02) 4933 5111. Check our FAQ page if you have any questions.
