The Fair Work Commission: unfair dismissal and general protections.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship.

The Fair Work Commission is the national workplace tribunal. If you are an employee and you lose your job, it is where two of the main claims are heard: an unfair dismissal claim and a general protections claim. They are not the same thing, they cover different people, and each has a short deadline that trips people up. This note explains both, with an eye to how arts work is actually engaged.

One point up front. These claims are mostly for employees. A genuine independent contractor is not an employee and cannot bring an unfair dismissal claim, although some general protections can still reach contractor and principal relationships. Whether you are an employee or a contractor is a question of substance, not of the label on your agreement. Our note on employee or independent contractor sets out how that line is drawn. Everything below is Commonwealth law under the Fair Work Act 2009 (Cth), so it applies the same way across the country.

What counts as unfair dismissal?

A dismissal is unfair if the Commission is satisfied of four things: you were dismissed, the dismissal was harsh, unjust or unreasonable, it was not consistent with the Small Business Fair Dismissal Code, and it was not a case of genuine redundancy. Being dismissed means your employment was ended at the employer’s initiative. It also covers being forced to resign because of something the employer did, which the law treats as a dismissal.

When it decides whether a dismissal was harsh, unjust or unreasonable, the Commission looks at a list of matters set out in the Act. They include whether there was a valid reason relating to your capacity or conduct, whether you were told that reason, whether you had a chance to respond, whether you were allowed a support person, and, for performance, whether you were warned before being let go. The size of the business and whether it had dedicated human resources staff are also weighed. Process counts as much as the reason. A fair reason handled badly can still be an unfair dismissal.

Who can bring an unfair dismissal claim?

Not every employee is covered. You must have finished the minimum employment period, and you must either be covered by a modern award or enterprise agreement, or earn less than the high income threshold. That threshold is $190,100 from 1 July 2026 and is indexed each year. The minimum employment period is six months, or twelve months if you worked for a small business employer, meaning one with fewer than 15 employees counted by head.

Casual work needs care here. A casual’s service counts towards the minimum period only where the work was regular and systematic and you had a reasonable expectation of continuing. A lot of arts engagements are short seasons, one-off shows or genuine casual shifts, so the first question is often whether you have enough qualifying service at all. Our notes on casual, fixed-term and seasonal engagement and the National Employment Standards explain how these engagements are treated.

Genuine redundancy is not unfair dismissal

If your role was made genuinely redundant, an unfair dismissal claim will not succeed. A redundancy is genuine only if the employer no longer needed your job to be done by anyone because of operational changes, the employer followed any consultation steps required by the award or agreement, and it would not have been reasonable to redeploy you elsewhere in the business or an associated one. If the employer skipped consultation, or could have redeployed you and did not, the redundancy may not be genuine, and the dismissal can be challenged.

What the Commission can order

The first remedy for an unfair dismissal is reinstatement, getting your job back, sometimes with lost pay. The Commission only awards money where it decides reinstatement is not appropriate. Compensation is capped at the lesser of six months of your pay or half the high income threshold, which is $95,050 for a dismissal on or after 1 July 2026. The cap is on lost earnings. You cannot be paid for hurt, distress or humiliation in an unfair dismissal case. A small application fee applies to lodge a claim, and it can be waived if paying it would cause you serious hardship.

General protections: the other route

General protections are a separate part of the Act. They make it unlawful for an employer to take adverse action against you for a prohibited reason. Adverse action includes dismissing you, cutting your hours or duties, refusing to give you work, or otherwise treating you to your disadvantage. A reason is prohibited if the action was taken because you exercised a workplace right, such as making a complaint or asking about your pay, because of your industrial activity, or because of a protected attribute such as your race, sex, age, disability, pregnancy, sexual orientation or family responsibilities.

General protections do not have a high income threshold or a minimum employment period, and there is no cap on what a court can award, so damages can include an amount for the distress the conduct caused. There is also a reverse onus. Once you show that adverse action was taken and point to a prohibited reason, the employer has to prove that the reason played no part in its decision. That shifts a real burden onto the employer, which is why this route matters for high earners, for short-service employees, and for anyone dismissed for speaking up.

The 21-day deadline

This is where good claims are lost. An unfair dismissal application, and a general protections application that involves a dismissal, must be lodged with the Commission within 21 days after the dismissal took effect. The Commission can extend that time only in exceptional circumstances, and it rarely does. A general protections matter that does not involve a dismissal has no fixed 21-day limit, but the sooner you act the better. If you think you have a claim, get advice straight away rather than waiting to see how you feel about it.

How a claim runs at the Commission

You start by lodging an application online and paying a filing fee, or asking for it to be waived on hardship grounds. The employer files a response. For most unfair dismissal and general protections dismissal matters, the next step is a conciliation, an informal and private phone discussion run by a Commission staff member or member, where the aim is to settle. Many matters resolve there, often for an agreed payment or an agreed statement of service, without anyone giving evidence.

If a matter does not settle, the paths differ. An unfair dismissal claim goes to a formal hearing or a determinative conference at the Commission, which then decides it. A general protections claim involving a dismissal that does not settle at conciliation moves to a court, usually the Federal Circuit and Family Court, unless both sides agree to let the Commission arbitrate instead. Costs orders are unusual at the Commission, so each side generally bears its own costs, though that is not guaranteed once a matter reaches court.

Which route, and what to do now

Unfair dismissal tends to suit an award-covered or lower-paid employee who was let go in a harsh or unfair way and wants the job back or capped compensation. General protections tend to suit a higher earner, a short-service employee, or anyone whose dismissal looks like it was for a prohibited reason, where the uncapped damages and the reverse onus help. You generally cannot run both for the same dismissal, so the choice matters and it is worth advice.

Whatever the route, do three things now. Write down the key dates, including the day your dismissal took effect, because the clock runs from there. Keep your contract, payslips, rosters and any emails or messages about the dismissal. And get advice quickly, well inside the 21 days. If the dispute is really about money you are owed rather than the dismissal itself, see our note on wage theft and underpayment.

Frequently asked.

How long do I have to make an unfair dismissal claim?

You have 21 days from the day the dismissal took effect to lodge your application with the Fair Work Commission. The same 21-day limit applies to a general protections claim that involves a dismissal. The Commission can extend time only in exceptional circumstances, and it rarely does, so treat the deadline as firm and get advice early.

Who can bring an unfair dismissal claim?

You must be an employee who has finished the minimum employment period, which is six months, or twelve months for a small business with fewer than 15 employees. You must also be covered by an award or enterprise agreement, or earn less than the high income threshold, which is $190,100 from 1 July 2026. A casual’s service counts only if it was regular and systematic with a reasonable expectation of continuing. A genuine independent contractor cannot claim.

What is the difference between unfair dismissal and general protections?

An unfair dismissal claim argues that the dismissal was harsh, unjust or unreasonable. It has income and service limits and the compensation is capped. A general protections claim argues that the employer took adverse action, such as dismissing you, for a prohibited reason like exercising a workplace right or a protected attribute. It has no income threshold, no minimum period and no compensation cap, and the employer carries a reverse onus to prove the reason.

What can the Fair Work Commission order if my dismissal was unfair?

The primary remedy is reinstatement, getting your job back, sometimes with lost pay. If the Commission decides reinstatement is not appropriate, it can order compensation, capped at the lesser of six months of your pay or half the high income threshold, which is $95,050 for a dismissal on or after 1 July 2026. You cannot be compensated for hurt or distress in an unfair dismissal case.

I was a casual or on a short contract. Can I still claim?

Maybe. A casual’s service counts towards the minimum employment period only if the work was regular and systematic and you had a reasonable expectation it would continue. A short fixed-term or seasonal engagement may not meet the minimum period at all. A general protections claim has no minimum employment period, so it can sometimes be available where unfair dismissal is not. A genuine contractor is not an employee. Get advice on your own facts.

Do I need a lawyer at the Fair Work Commission?

You can represent yourself, and the first step in most matters is an informal conciliation. That said, these claims turn on strict deadlines and specific legal tests, permission is usually needed before a lawyer can appear at a hearing, and the choice between unfair dismissal and general protections has real consequences. Getting advice early, inside the 21 days, is the sensible course.

If you are a performer, producer, venue, or independent practitioner and this raises a question about your own situation, Aaron Kernaghan and the team at Brady & Associates Lawyers can give you tailored guidance. Call 0421 717 019 or contact the firm.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship. It reflects the law in Australia as at 28 September 2026, with a focus on Commonwealth law and New South Wales and ACT practice. The law changes and applies differently to every set of facts. Written by Aaron Kernaghan, Brady & Associates Lawyers.

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