General Protections Claim — Alternative to Unfair Dismissal
A general protections claim under the Fair Work Act protects workplace rights with no income cap and no minimum service period. Learn about adverse action, reverse onus, remedies, and the 21-day time limit.
What are general protections?
The general protections provisions in Part 3-1 of the Fair Work Act 2009 (sections 340-351) protect employees from 'adverse action' taken against them because of certain protected attributes or because they exercised a 'workplace right.' These provisions are broader and more powerful than unfair dismissal protections in several key ways. They protect all employees regardless of income level (unfair dismissal has a high income threshold of $175,000 in 2024), they apply from day one of employment (unfair dismissal requires at least 6 months of service, or 12 months for small businesses), and they include a reverse onus of proof (the employer must prove the adverse action was not taken for a prohibited reason). General protections cover a wide range of situations, not just dismissal. They protect against any adverse action — including dismissal, demotion, disciplinary action, changes to duties, refusal to hire, and discrimination — if it is motivated by a prohibited reason.
What workplace rights are protected?
Under sections 340-343, a workplace right includes the benefit of a workplace law, instrument, or order (such as an award, EA, or the NES), the ability to initiate or participate in a proceeding under a workplace law (such as making a Fair Work complaint), and the ability to make a complaint or inquiry in relation to employment. This means your employer cannot take adverse action against you because you asked about your pay rate, queried your payslip, raised a safety concern, lodged a workers' compensation claim, contacted the Fair Work Ombudsman, joined or refused to join a union, participated in lawful industrial action, took or proposed to take personal leave or parental leave, made a flexible working arrangement request, or exercised any other entitlement under workplace law. The protections also extend to discrimination based on race, colour, sex, sexual orientation, age, disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction, or social origin.
Adverse action — what does it mean?
Adverse action is defined broadly in section 342 of the Fair Work Act. For an employer taking action against an employee, adverse action includes dismissing the employee, injuring the employee in their employment (which includes any detriment such as demotion, reduction in hours, change of duties, or denial of opportunities), altering the position of the employee to their prejudice, and discriminating between the employee and other employees. For a prospective employer, it includes refusing to employ a person. Importantly, threatening to take adverse action is also prohibited — the employer does not need to actually carry out the action for a contravention to occur. The test for adverse action is objective — a reasonable person in the employee's position would consider the action detrimental. Even relatively minor actions can constitute adverse action if they are motivated by a prohibited reason. For example, excluding an employee from meetings after they raised a safety concern, or giving an employee less desirable shifts after they asked about their award entitlements, could both constitute adverse action.
The reverse onus of proof
One of the most powerful features of a general protections claim is the reverse onus of proof under section 361. Once the employee establishes that adverse action was taken and that they had a workplace right (or protected attribute), it is presumed that the action was taken for the prohibited reason unless the employer proves otherwise. This means the employee does not need to prove what was in the employer's mind — they only need to show that adverse action occurred and that a prohibited reason existed. The employer must then prove, on the balance of probabilities, that the prohibited reason was not a substantial and operative reason for the adverse action. This is a significant evidentiary advantage for employees. In practice, employers must produce credible evidence of a legitimate, non-prohibited reason for the action. If the employer's evidence is vague, inconsistent, or contradicted by the circumstances, the court may find that the employer has failed to discharge the onus. This reverse onus does not apply to discrimination claims under general protections — for those, the standard onus applies.
The 21-day time limit
If you have been dismissed and want to make a general protections claim involving dismissal, you must file your application with the Fair Work Commission within 21 calendar days of the dismissal taking effect. This is the same deadline as unfair dismissal applications, and it is strictly enforced. The FWC can grant an extension of time in exceptional circumstances, but extensions are rarely granted — you must demonstrate that there are 'exceptional circumstances' and that it would be unfair not to allow the late application. If your general protections claim does not involve dismissal (for example, you were demoted, had your hours reduced, or were subjected to other adverse action while still employed), you do not apply to the FWC. Instead, you can bring a court application directly to the Federal Court or Federal Circuit and Family Court. The limitation period for a court application is 6 years, giving you much more time. This distinction is important — if you are still employed but facing adverse action, you do not need to resign to bring a claim.
Remedies — compensation, reinstatement, and penalties
If a general protections claim involving dismissal is not resolved at conciliation before the Fair Work Commission, the matter proceeds to the Federal Circuit and Family Court. Available remedies include reinstatement to your former position (or a comparable position), compensation for lost wages (past and future), compensation for non-economic loss (hurt, humiliation, distress — this is not available in unfair dismissal claims), civil penalties against the employer (up to $93,900 per contravention for a corporation), and injunctions or orders to prevent ongoing adverse action. There is no cap on compensation in a general protections claim — unlike unfair dismissal, where compensation is limited to 26 weeks' pay. This makes general protections particularly valuable for high-income employees who may receive inadequate compensation under the unfair dismissal cap. The court can also award costs against the losing party in general protections matters, though this is discretionary. In practice, many general protections claims settle before hearing, often for amounts significantly higher than unfair dismissal settlements because of the uncapped compensation and penalty exposure.
When to use general protections vs unfair dismissal
Choosing between a general protections claim and an unfair dismissal claim depends on your circumstances. General protections is generally preferable when you earn above the high income threshold ($175,000), you have less than 6 months' service (or 12 months at a small business), the reason for dismissal relates to a workplace right or protected attribute (you raised a complaint, took leave, were pregnant, etc.), you want to claim compensation for non-economic loss, or you want access to uncapped compensation. Unfair dismissal may be preferable when the dismissal was harsh, unjust, or unreasonable but not linked to a prohibited reason (for example, dismissal for minor misconduct without a proper process), you want a quicker resolution (unfair dismissal is typically faster), or the facts do not clearly establish a prohibited reason. You can file both applications simultaneously within the 21-day period and elect to proceed with the stronger claim after receiving legal advice. However, you cannot receive compensation under both — you must choose one. Many employment lawyers recommend filing both applications to preserve your options.
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General information and estimates only — not legal, financial, or tax advice. Always verify with the Fair Work Ombudsman (13 13 94) or a qualified professional.
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