Not Eligible for Unfair Dismissal? You Probably Have a General Protections Claim (and It Isn’t Capped)

You looked up unfair dismissal, got two paragraphs in, and hit the wall. Less than six months’ service (twelve at a small business). Casual. Over the high-income threshold with no award. Or you haven’t been sacked at all: your hours were cut, you were demoted, or you were “restructured” the week after you complained. Every one of those knocks you out of an unfair dismissal application under s 394 of the Fair Work Act 2009.

What almost nobody tells you is that the Fair Work Act has a second, separate jurisdiction that has none of those exclusions. It’s called general protections. The test is different, the form is different, and the compensation isn’t capped.

Your rights

Part 3-1 of the Fair Work Act 2009 (Cth) makes it unlawful for an employer to take adverse action against you because you have, exercised, or proposed to exercise a workplace right (s 340), because of a protected attribute such as pregnancy, family or carer responsibilities, disability, age, race, sex or religion (s 351), or because you were temporarily absent through illness or injury (s 352). It also prohibits sham contracting (ss 357–359).

A workplace right is broad: asking about your pay or entitlements, complaining about safety, making a complaint or enquiry about your employment, taking sick or carer’s leave, being pregnant, or participating in union activity. Adverse action is equally broad: dismissal, demotion, cutting hours, refusing to promote, issuing a warning, altering your position to your detriment, or refusing to hire you.

Three features make this jurisdiction different from unfair dismissal:

• No minimum employment period, no small-business exemption, no high-income cut-off. Casuals, probationers and executives can all apply.
• The reverse onus (s 361). Once you allege the adverse action was taken for a prohibited reason, the employer must prove it wasn’t. In unfair dismissal, you carry the burden.
• Uncapped remedies (s 545). A court can order reinstatement, compensation for economic and non-economic loss, and civil penalties against the employer and the individuals involved. Unfair dismissal compensation is capped at six months’ pay.

This is federal law. It applies the same way in every state and territory, so there is no “by state” section in this post.

What to do right now

1. Check the clock. If you were dismissed, the application must be lodged within 21 days of the dismissal taking effect (s 366). Extensions are granted only in exceptional circumstances. If you are still employed, the time limit is six years, but don’t wait.
2. Write the timeline. Date you exercised the workplace right (complained, asked about pay, took sick leave, told them you were pregnant). Date of the adverse action. What was said in between. Timing is the most persuasive evidence in these cases.
3. Save the evidence now. Emails, messages, rosters showing the hours cut, the termination letter, payslips, medical certificates. Forward work emails to a personal address before your access is cut.
4. Pin down the employer’s stated reason. “Not a good fit”, “restructure”, “performance”. You will contrast it against the timing and the absence of any prior concern.
5. Lodge the right form. Form F8 (general protections application involving dismissal) or Form F8C (not involving dismissal). Filing an unfair dismissal F2 instead, when you’re ineligible, wastes your 21 days.

General protections vs unfair dismissal: choosing the right one

You cannot run both for the same dismissal (s 725). If you are eligible for unfair dismissal and your complaint is simply that the sacking was harsh, that’s your jurisdiction: it’s quicker and the Commission can arbitrate. Choose general protections when you are ineligible for unfair dismissal, or when the real story is why you were treated that way: the complaint you made, the leave you took, the pregnancy you disclosed. The Commission holds a conference first (s 368). If it doesn’t settle, the Commission issues a certificate and you can proceed to the Federal Circuit and Family Court (or, with the employer’s consent, Commission arbitration).

The “you’re a contractor” version

Some general protections applications come from people told they were contractors and then cut off when they asked for leave, super or a payslip. The Fair Work Act prohibits sham contracting: representing an employment relationship as an independent contract (s 357), dismissing an employee to re-engage them as a contractor doing the same work (s 358), or misrepresenting a proposed job as contracting (s 359). If you had set hours, wore their uniform, used their tools, couldn’t delegate the work and were paid by the hour, the label on the invoice doesn’t decide the question. A general protections application can plead both the sham contracting contravention and the adverse action, and the reverse onus applies to the reason for the dismissal. If you have an ABN and an invoice book, you are not automatically excluded.

Who to complain to

The Fair Work Commission is the only door for a general protections application. The Fair Work Ombudsman can investigate the same conduct and prosecute employers, but it doesn’t award you compensation, and a call to the FWO does not stop your 21 days. If your case is really about discrimination, the Australian Human Rights Commission or your state anti-discrimination body is an alternative forum, but you must choose one; you can’t run both.

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Related guides: who can claim unfair dismissal, what happens at the Fair Work conciliation, reinstatement and compensation and when a redundancy can be unfair.