General Protections Disputes

While many people are familiar with unfair dismissal, the “general protections” provisions of the Fair Work Act 2009 offer a different, powerful set of rights for employees and obligations for employers.

Unlike an unfair dismissal claim, which focuses on whether a dismissal was carried out in a fair manner, a general protections claim is about the reason for an employer’s action. These laws are designed to protect individuals from being punished or treated differently for exercising a right they have at work.

Understanding this framework is essential for employees seeking to enforce their rights and for employers aiming to manage their workforce lawfully and minimise legal risk.

What is protected under the law?

The general protections framework protects individuals from “adverse action” being taken against them because they have certain rights or attributes.

1. Exercising a workplace right

This is the most common basis for a claim. Every employee has “workplace rights,” and it is unlawful for an employer to take adverse action against them for exercising one. Examples include:

• Making a complaint or inquiry about their pay, safety, or working conditions.

• Requesting to take a period of leave they are entitled to (e.g., personal, annual, or parental leave).

• Belonging to a trade union (or choosing not to).

• Participating in lawful industrial activity.

2. Protected personal attributes

The law also protects employees from adverse action taken because of a protected personal attribute. This overlaps with anti-discrimination law and includes attributes like:

• Race, colour, or national extraction.

• Sex, sexual orientation, or gender identity.

• Age.

• Physical or mental disability.

• Marital status, family or carer’s responsibilities.

• Pregnancy.

What constitutes “adverse action”?

A common misconception is that adverse action only means dismissal. The term is much broader and can include any action that injures an employee in their employment. Examples include:

• Dismissing an employee.

• Altering an employee’s position to their detriment (e.g., a demotion).

• Discriminating between an employee and other employees.

• Refusing to hire a prospective employee.

• Treating an employee differently for a discriminatory reason.

The reverse onus of proof

A key feature of general protections claims is the “reverse onus of proof”. Once an employee shows that adverse action was taken and they had a protected right or attribute, the burden of proof shifts to the employer.

The employer must then prove, on the balance of probabilities, that their actions were not taken for a prohibited reason. For example, they must prove they dismissed an employee for genuine performance issues, not because the employee had just made a complaint about their pay.

The claim process

1. Strict time limits: If the adverse action was dismissal, a claim must be lodged with the Fair Work Commission within 21 days. For non-dismissal adverse action, the time limit is longer. The 21-day deadline for dismissals is critical.

2. Application and conciliation: The process begins with an application to the Fair Work Commission, which will then typically schedule a conciliation conference to help the parties resolve the dispute.

3. Next steps: If the matter does not settle, the Commission will issue a certificate. The applicant can then choose to have the matter arbitrated by the Commission (if both parties agree) or, more commonly, proceed with an application to the Federal Circuit and Family Court of Australia or the Federal Court.

How we can help

General protections claims are legally complex and carry significant consequences. We offer expert representation to both employees and employers navigating this challenging area.

For Employees

If you believe you have been penalised for exercising a workplace right, we can:

• Advise you on whether you have a valid general protections claim.

• Help you articulate your case clearly and lodge your application within the strict time limits.

• Represent you at the conciliation conference to negotiate a fair resolution.

• Guide you through the court process if a settlement cannot be reached.

For Employers

If your business is facing a general protections claim, we can:

• Help you prepare a strong response and gather evidence of your legitimate business reasons.

• Provide robust representation at the conciliation conference.

• Advise you on managing risk and implementing best-practice procedures.

• Vigorously defend your position in court, helping you discharge the “reverse onus of proof.”

Disclaimer: The content of this article is intended to provide general information only and does not constitute legal advice. You should seek tailored legal advice for your specific circumstances before taking any action.