How do I choose?

Types of claims

If you have been dismissed, your dismissal may have been unfair, or in breach of a general protection. If that is the case, you may be able to make a claim for either unfair dismissal or general protections dismissal. You cannot make both claims.

Before deciding what kind of application to make, you should get legal advice.

For more information, see Unfair dismissal and General protections dismissal.

Unpaid wages or entitlements

If you were dismissed, resigned or are still working for your employer, and you are owed money for unpaid wages and entitlements, you can make a claim even if you have also made an unfair dismissal claim or breach of general protections claim.    

If you and your employer come to an agreement about a dismissal claim, and your employer agrees to pay you some money, you should get legal advice about:

• whether the payment includes any or all of your unpaid entitlements
  
• whether the agreement stops you from making a further claim for unpaid entitlements.

For more information about wages and entitlements and what you can do if you are owed money, see Wages and entitlements. 

Other claims

You may even have other options such as a:

• discrimination claim, if you have been discriminated against at work - see Discrimination at work
  
• bullying claim, if you are experiencing any workplace bullying - see Bullying.

Speed

Unfair dismissal applications are usually finalised faster than general protections applications. In a general protections dismissal application you may need to apply to the Federal Court of Australia or the Federal Circuit and Family Court of Australia before orders can be made in your case.

Minimum time employed

You need to have been employed for a certain amount of time before you can make an unfair dismissal application. There is no minimum time you need to be employed to make a general protections dismissal application.

Limit on maximum earnings

If you earn over a certain amount, you may not be able to make an unfair dismissal application. There is no maximum earnings amount for making a general protections dismissal application.

Employee or contractor?

Only employees can make an unfair dismissal application. Both employees and some independent contractors may be able to make a general protections dismissal application.

Casual employees

Casual employees are usually not able to make unfair dismissal applications (however casual employees that work regular hours may still be able to apply). It is possible for all types of casual employees to make a general protections dismissal application.

How applications are dealt with

Unfair dismissal applications are heard in the Fair Work Commission (the Commission), which is a tribunal (a type of court) that only deals with employment issues. General protections dismissal applications are conciliated at the Commission but if they don't settle, the case must be continued in the Federal Circuit and Family Court of Australia, unless both parties agree to a hearing (arbitration) in the Commission. The Federal Circuit and Family Court of Australia has far more formal and complex procedures than the Commission.

Amount of compensation

There is a cap on how much compensation you can get if you make an unfair dismissal application. There is no cap on how much compensation you can get if you make a general protections application.

Legal costs

It is generally more expensive to run a case in the Federal Circuit and Family Court of Australia than it is to run a case at the Commission.

Usually, you will have to pay your own legal costs if you get a lawyer to represent you in the Federal Circuit and Family Court of Australia or the Federal Court of Australia. In limited circumstances, the court can make cost orders, for example, where one party started proceedings vexatiously or without reasonable cause, or wher​e a party has refused to participate in proceedings or caused the other party to incur costs. 

Generally, you and your employer will have to pay your own legal costs if you apply to the Commission, regardless of whether you win or lose. However, in some circumstances, costs may be awarded:

• against you if your application is dismissed for being frivolous or vexatious, or 
• against you or your employer if either party's conduct in running the case was unreasonable.