Received a claim? Time matters
A former employee has only 21 calendar days from the dismissal taking effect to lodge an unfair dismissal or general protections application — not 21 business days, and the Commission extends it only in exceptional circumstances.
If you've been notified of a claim, or you're partway through a termination and want to get the process right before you act, call us today rather than reading the rest of this page.
How we help
We act exclusively for employers — never for employees bringing claims against them. That focus means undivided loyalty to your business, and lawyers who spend their time on one side of these matters, not switching sides case to case.
- Employment contracts and policies
- Modern award and agreement compliance
- Workplace investigations
- Performance management and termination
- Defending unfair dismissal claims
- Defending general protections and adverse action claims
- Restraints of trade and confidentiality
- Redundancy and restructures
Unfair dismissal
A dismissal is unfair under section 385 of the Fair Work Act 2009 (Cth) if it was harsh, unjust or unreasonable, was not a genuine redundancy, and — for a small business employer — did not comply with the Small Business Fair Dismissal Code. A dismissal can be harsh even where there was a valid reason: where the response was disproportionate to the conduct, or where a long-serving employee with a clean record was dismissed for a first offence.
Could a claim succeed against you?
- The employee was dismissed, including by forced resignation
- They completed the minimum employment period
- They are award or agreement covered, or earn under the high income threshold
- They are not a genuine casual without a reasonable expectation of ongoing work
- They lodge within 21 calendar days
- They are covered by the national system
| Small business | Other employers | |
|---|---|---|
| Employee headcount | Fewer than 15 | 15 or more |
| Minimum employment period | 12 months | 6 months |
| Fair Dismissal Code | Applies — compliance is a defence | Does not apply |
| Redundancy pay | Generally not required | Required under the NES |
| Time limit to lodge | 21 calendar days from the dismissal taking effect | |
Thresholds change every 1 July
The high income threshold is $190,100 from 1 July 2026, and the maximum compensation the Commission can order for unfair dismissal is the lower of six months' pay or half that threshold — $95,050. Both are indexed annually, so confirm the current figure before relying on it. Reinstatement is the primary remedy under the Act and is not subject to the cap.
General protections
General protections claims are often the stronger option, and they are not subject to the high income threshold or the minimum employment period. The claim is that adverse action was taken against an employee because they exercised a workplace right, or because of a protected attribute they hold. Compensation is not capped.
Adverse action is broader than dismissal. It includes demotion, refusing to promote, altering someone's position to their prejudice, or discriminating between employees. Critically, once the basic elements are established, section 361 reverses the onus: the employer must prove the action was not taken for a prohibited reason. That reversal is what makes these claims difficult to defend without contemporaneous records made at the time of the decision.
Family and domestic violence is now a protected attribute for these purposes, added by the Closing Loopholes reforms.
What changed recently
The Closing Loopholes reforms rewrote several things employers commonly get wrong.
| Change | From | Effect |
|---|---|---|
| Criminal wage theft | 1 Jan 2025 | Intentional underpayment is a criminal offence; substantially increased civil penalties |
| New casual definition | 26 Aug 2024 | Tests the practical reality of the relationship, not just the contract (s 15A) |
| Employee choice pathway | 26 Aug 2024 | Casuals may give written notice to convert after 6 months (12 in small business) |
| Right to disconnect | 26 Aug 2024 | Employees may reasonably refuse out-of-hours contact (s 333M) |
| Right to disconnect — small business | 26 Aug 2025 | Same right extends to small business employees |
Underpayment can now be a criminal matter
From 1 January 2025, an employer that engages in intentional conduct to fail to pay a required amount — wages, allowances, superannuation, leave entitlements — commits a criminal offence under section 327A of the Fair Work Act.
Honest mistakes are not the target, and a voluntary compliance code exists for small business. But "we didn't check the award" is a far riskier position than it was two years ago. If you suspect an underpayment, get advice before you self-report.
For employers: getting the process right
Most unfair dismissal claims employers lose are lost on process, not on the underlying reason. There was a genuine performance problem, but no warning; a genuine misconduct issue, but no opportunity to respond; a genuine redundancy, but no consultation.
Redundancy is not a shortcut
A redundancy is genuine only where the job itself is no longer required, consultation obligations under the applicable award or agreement have been met, and redeployment within the business and associated entities has been genuinely considered. Making a person redundant and hiring a replacement to do substantially the same work is the clearest way to lose the case.
Contracts, policies and restraints
A restraint of trade is void as against public policy unless it goes no further than reasonably necessary to protect a legitimate business interest. Overly broad restraints — unlimited in time, area or activity — frequently fail entirely, leaving the employer with no protection at all. Cascading clauses are common, but they are not a substitute for drafting something defensible in the first place.
The same discipline applies to contracts generally: written terms reflecting the actual role, correct award classification, clear confidentiality and intellectual property clauses, and policies applied consistently. Policies ignored in practice are worse than no policies, because they establish a standard you then failed to meet.
What it costs
Written costs agreement before we start. Contract and policy work is usually fixed fee. Claims and defences are estimated by stage, because cost is driven by whether a matter resolves at conciliation or runs to hearing — and most resolve at conciliation.
- Fixed fees for contracts and policies
- Stage-based estimates for claims
- Urgent advice when a deadline is close
- Realistic view of prospects, early
- Fair Work filing fees at cost
- Advice on settlement, not just litigation
Frequently asked questions
A former employee must lodge their application with the Fair Work Commission within 21 calendar days of the dismissal taking effect. That is calendar days including weekends and public holidays, and the Commission will only allow a late application in exceptional circumstances. Notice of a claim from the Commission can arrive after the 21 days have run, so silence in that window does not mean no claim was lodged.
A small business employer has fewer than 15 employees, counted as a simple headcount including casuals engaged on a regular and systematic basis, and including employees of associated entities. Employees of a small business must complete 12 months service before claiming, compared with 6 months elsewhere, and the Small Business Fair Dismissal Code applies.
The high income threshold is $190,100 from 1 July 2026. An employee earning above it cannot bring an unfair dismissal claim unless covered by a modern award or an enterprise agreement applies. The threshold is indexed each 1 July, so confirm the current figure.
For unfair dismissal, compensation is capped at the lower of six months' pay or half the high income threshold, which is $95,050 from 1 July 2026. Reinstatement is the primary remedy under the Act and is not subject to that cap. General protections claims are not capped.
Unfair dismissal asks whether the dismissal was harsh, unjust or unreasonable, and is subject to the minimum employment period, the high income threshold and a compensation cap. A general protections claim alleges adverse action was taken because an employee exercised a workplace right or because of a protected attribute they hold. It has no threshold or minimum period, no compensation cap, and once the basic elements are established the onus shifts to the employer under section 361 to prove the reason.
Possibly. If the resignation followed conduct by the employer that left the employee no real choice, it may be treated as a forced resignation and therefore a dismissal. These claims turn heavily on evidence of what was said and done at the time — which is exactly why getting the process and the documentation right during a termination matters.
Yes. Since 26 August 2024 (with transitional arrangements for existing casuals that ended in 2025), the employee choice pathway allows a casual to give written notice seeking conversion to permanent employment after 6 months, or 12 months with a small business employer, if they believe they no longer meet the casual definition. The employer must respond within the required timeframe and can only refuse on specified grounds.
Since 26 August 2024, employees may reasonably refuse to monitor, read or respond to work contact outside their working hours, unless the refusal is unreasonable. It commenced for small business employers on 26 August 2025. It is a workplace right, so taking adverse action against an employee for exercising it can found a general protections claim.
Intentional underpayment is. From 1 January 2025, section 327A of the Fair Work Act makes it an offence for an employer to engage in intentional conduct to fail to pay a required amount, including wages, allowances, superannuation and leave entitlements. Honest mistakes are not the target and a voluntary compliance code applies to small business, but the consequences of not checking award obligations are now considerably more serious.
A restraint is void as against public policy unless it goes no further than reasonably necessary to protect a legitimate business interest such as confidential information or client connections. Restraints excessive in duration, geographic area or scope of activity often fail entirely, which leaves the employer unprotected.
More information
We provide employment law advice and representation to employers in all industries.
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Our expertise in employment law and workplace relations is founded on an appreciation of the priorities and interests of employers.
We have a comprehensive understanding of what is relevant and what is fair in employment relationships.
The aim of the Fair Work Act 2009 (Cth) is to ‘provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians’.
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Employment law is intricate and constantly changing; therefore, having the right legal advice is essential to protect your rights as an employer. Our experienced employment lawyers possess the knowledge and skillset to assist with all aspects of employment law such as contracts, workplace investigations, discrimination/harassment claims, unfair dismissal cases, redundancy situations and workplace health & safety concerns.
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Discrimination and harassment complaints carry real legal and reputational risk for an employer, and employers now have a positive duty to take reasonable and proportionate measures to prevent sexual harassment. Our employment lawyers advise employers on prevention, on responding to complaints, and on defending discrimination and harassment claims.
An unfair dismissal claim can be disruptive and costly for a business. Our employment lawyers advise employers before a termination, respond to applications, and represent employers at conciliation and through any proceedings that follow.
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This page is general information about the law as it applies in Queensland, current as at 2026. It is not legal advice and does not take your circumstances into account. Time limits and thresholds change — several figures on this page are indexed annually. Speak to one of our lawyers before acting.
