Employers facing a general protections dismissal claim may find themselves having substantive discussions with the Fair Work Commission much earlier than expected. The Fair Work Commission is trialling changes to the way it manages general protections applications, including greater early intervention by Commission staff and a more resolution-focused approach to conferences.

Why is the process for general protections claims changing?

General protections dismissal applications have increased significantly. The Fair Work Commission has reported that applications were on track to increase by approximately 80% over the three years to the end of the 2025–26 financial year. In response to increasing caseloads, the Commission is piloting new approaches designed to resolve disputes earlier and reduce the number of matters progressing further through the system. One of the most significant changes for employers is the introduction of targeted early intervention by Senior Dispute Resolution Officers.

What is the new intake process?

Previously, an employer receiving a general protections dismissal application might have expected to lodge its formal response and then prepare for a conciliation conference at a later date. Under the new approach, Commission staff may engage with the parties much earlier. This can involve an initial conversation with the employer and employee, discussions about the issues in dispute, shuttle negotiations between the parties or bringing the parties together for a staff-led conference.

Importantly, employers should not assume an initial call from the Commission will simply involve scheduling or administrative matters. The conversation may quickly turn to the substance of the dispute, including the employer’s position and whether there is an opportunity to resolve the matter.

This means employers should be prepared to clearly explain what happened, why the employee was dismissed and their position regarding the allegations before participating in an intake discussion.

Employers still need to respond to the application

Early intervention does not mean employers should put their formal response to one side. Employers generally have seven days after receiving the application to provide their response to the Fair Work Commission. The response is an important opportunity to provide the employer’s version of events and respond to the allegations being made.

Unless advised otherwise by the Commission in relation to the particular matter, employers should continue to work towards the applicable deadline while also preparing for any early discussions with Commission staff.

What should employers do before an intake call?

Receiving a general protections claim can be confronting, particularly where an employer strongly believes the dismissal was justified. However, employers should avoid approaching an intake discussion without first understanding the claim and their own position.

Before speaking with the Commission, consider:

• What is the employee alleging? Identify the workplace right, protected attribute, complaint, inquiry or other protected activity the employee says influenced the dismissal.
• Why was the employee actually dismissed? Identify the genuine reasons for the decision and, importantly, who made the decision.
• What documents support the decision? Gather relevant correspondence, disciplinary records, investigation documents, performance records, meeting notes and other contemporaneous material.
• Are there any risks? Consider whether there are inconsistencies in the documentation or circumstances that could support the employee’s allegations.
• Who has authority to discuss settlement? If early resolution is raised, the employer should know who can provide instructions and what parameters, if any, apply.

Employers should also be cautious about making statements about the reasons for dismissal without first confirming the facts with the relevant decision-maker.

Does discussing settlement mean admitting liability?

No. Exploring an early resolution does not mean an employer accepts that it has breached the Fair Work Act. There may be legitimate commercial reasons for resolving a dispute, including the cost of defending proceedings, management time, disruption to the business and the uncertainty associated with litigation. However, employers should understand the strengths and weaknesses of their position before agreeing to settlement terms.

What if the matter cannot be resolved?

The purpose of the Commission process is to provide the parties with an opportunity to resolve the dispute without going to court. If the dispute cannot be resolved through the Fair Work Commission process, the employee may have the option of pursuing the claim through the federal courts, subject to the requirements of the Fair Work Act.

What do changes to the general protections claims process mean for employers?

The days of receiving a general protections application and waiting until conciliation to fully prepare may be over. With the Fair Work Commission increasingly focused on early intervention, employers may need to articulate their position and consider resolution options shortly after receiving a claim. The safest approach is to treat the application as requiring immediate attention. Review the allegations, preserve relevant documents, speak with the decision-maker, understand the reasons for dismissal and seek workplace relations advice where appropriate.

Business Chamber Queensland’s Workplace Relations team can assist employers to understand general protections applications, prepare responses and navigate early intervention and conciliation processes before the Fair Work Commission. Businesses with HR services as part of their membership, can contact the Employer Assistance Hotline anytime for advice and support. Consulting fees apply for non-members.