It’s a common for many to find confusion. What separates an unfair dismissal from an unlawful one? The distinction is more than just spelling—it determines your rights and the options available to you. We fight for employees only and will delve into more explanation of the key differences below.
Your manager has just finished speaking, and the message is clear: your time with the company is over. In that moment, your mind races. Was the reason valid? Was the process fair? Was it even legal?
Our workplace relations system can be complex, difference between unlawful and unfair dismissal being the perfect example of this complexity. They point to two distinct pathways an employee can take. We field calls on this topic often. The confusion often appears when a dismissed employee is faced with a choice between two key applications at the Fair Work Commission:
Choosing the right path is critical, and it all starts with understanding the fundamental difference between “unfair” and “unlawful” dismissal.
Let’s start by looking at it in simple terms. Unlawful Dismissal is the broad category for any termination that breaches a specific Australian law. Unfair Dismissal is a very specific, and common, type of unlawful dismissal.
It’s the classic “all squares are rectangles, but not all rectangles are squares” scenario. Every proven unfair dismissal is unlawful, but there are many types of unlawful dismissal that don’t meet the specific criteria to be considered “unfair.”
So, which pathway applies to you? Let’s break down the two routes.
This is the most common avenue. It doesn’t necessarily argue that your employer broke a specific law, but rather that your dismissal was “harsh, unjust, or unreasonable.”
However, to even make this argument, you must first pass through several jurisdictional gateways. Think of these as the essential criteria you must meet before the Fair Work Commission can even hear your case.
If you can’t tick all these boxes, the Unfair Dismissal pathway is likely closed to you, which brings us to the second, much broader pathway.
This is the broader category of Unlawful Termination. This pathway isn’t concerned with whether the dismissal was “harsh.” Instead, it focuses on the reason you were dismissed.
A General Protections claim argues that you were fired for a prohibited reason, most often because you exercised a “workplace right.” Crucially, the minimum employment periods (6 or 12 months) and the high-income threshold often do not apply, making this a vital option for many employees, including short-term and casual staff.
You may have a General Protections claim if you were dismissed for reasons such as:
Choosing between an F2 and an F8 application is the most important strategic decision you’ll make. It shapes the entire direction of your case, the evidence required, and the potential outcomes. Understanding this framework is the first step in turning a challenging situation into an informed course of action.
To be eligible to make an unfair dismissal claim, an employee’s annual rate of earnings must typically be less than the high-income threshold.
This figure has recently been updated. As of 1 July 2025, the high-income threshold is $183,100 per year.
However, there is a critical exception to this rule: the high-income threshold does not apply if your employment is covered by a modern award or an enterprise agreement. If you are covered by one of these instruments, you can still make an unfair dismissal claim regardless of how much you earn.
An application for unfair dismissal or general protections must be lodged with the Fair Work Commission within 21 calendar days of the dismissal taking effect.
This is not a flexible guideline; it is one of the most strictly enforced rules. While a provision exists for accepting late applications in “exceptional circumstances,” this term is interpreted very narrowly by the Commission and the threshold is extraordinarily difficult to meet.
To put it in perspective, reasons such as miscalculating the date, being busy, or not understanding the process are almost never considered exceptional. The Commission has been known to reject applications for being just minutes late. Therefore, acting decisively within this three-week window is absolutely critical to preserving your rights.
You are protected from being punished for exercising a workplace right that you are entitled to under Fair Work Act. The classic example is being dismissed shortly after making a formal complaint or enquiry about your pay.
Looking at a common example we have heard multiple times, simply discussing your salary with colleagues is a protected workplace right, yet many employees have faced unjust consequences from their employers having done this.
Other common examples include being dismissed after:
Employers will rarely state an unlawful reason for termination, often citing “performance issues” or a “restructure” instead. However, the Fair Work Commission is adept at looking past the official explanation. It will examine the timing, context, and evidence to determine the true, substantial reason for the dismissal. If the evidence suggests the real reason was discriminatory or retaliatory, it can be deemed an unlawful dismissal.
While the terms are often confused, unfair and unlawful dismissal claims require entirely different arguments and evidence. One is a review of procedural fairness, while the other is a targeted investigation into an employer’s motive. Understanding this distinction is key and can make the difference between winning or losing your claim.
For an unfair dismissal claim, the Fair Work Commission effectively audits the dismissal process to determine if it was “harsh, unjust, or unreasonable.” It weighs a number of factors to see if you were given a ‘fair go’, including:
When a workplace dispute arises, the goal is resolution. This typically happens in one of two ways: a confidential, negotiated settlement, or a formal decision made by a commission or court. The path you are on—Unfair Dismissal or General Protections—dramatically influences this endgame.
Before any formal hearing, there is almost always an opportunity to resolve the matter through a private conciliation conference. Here, you can negotiate a confidential, “without prejudice” settlement with your former employer. This means anything discussed cannot be used against either party if the case proceeds. A typical settlement might include financial compensation, an agreement to change the termination to a resignation, and a formal Statement of Service.
But what happens if you can’t reach an agreement? The paths diverge significantly.
If your unfair dismissal claim doesn’t settle at conciliation, the Fair Work Commission has the power to hold a formal hearing and make a binding decision. This is a faster and significantly lower-cost jurisdiction compared to the courts.
The primary remedies are:
This route is fundamentally different. If conciliation fails, the Fair Work Commission cannot decide the outcome without the agreement of both parties. Instead, it issues a certificate, and you have a strict 14-day deadline to escalate your claim to the Federal Court or Federal Circuit Court.
This pathway has higher risks but also greater potential rewards:
This is the critical choice every dismissed employee must make.
Navigating this choice requires expert guidance. We are not lawyers; we are highly experienced industrial relations advocates who specialise in the Fair Work Commission system. We expertly manage the conciliation process for both unfair dismissal and general protections claims.
Should your general protections matter not settle and require escalation to the Federal Court, we have a trusted referral network of specialist employment lawyers to ensure you get the dedicated legal representation required for court litigation.
While the details of your case maybe complex, one fact is brutally simple – you have just 21 days. This deadline is the single biggest barrier to justice for many dismissed employees. Every day of delay reduces your options and increases the pressure. Don’t let this window close. Forget the confusion and legal jargon for a moment and focus on this one imperative. The most important step you can take right now is to get a professional, timely assessment of your situation. Contact our experienced team to understand your position on 1800 333 666.
