For employees
Pregnancy and parental leave discrimination: deadlines, process and when to get a lawyer
Losing your job, your hours or your role because you are pregnant, took parental leave or asked to work flexibly on return is one of the most common workplace discrimination complaints in Australia, and the law is unusually helpful to the employee. The Fair Work Act treats pregnancy as a protected attribute and parental leave as a workplace right, and it puts the burden on the employer to prove those were not the reason. This page covers the deadlines, the process, the free route and when a lawyer is worth paying for. It is general information, not legal advice.
Updated . General information, not legal advice.
Time limits that apply
| What | Limit | Source |
|---|---|---|
| General protections application if you were dismissed | 21 days from the dismissal | Fair Work Act s 366 |
| General protections claim where you were not dismissed (cut hours, demotion, refused return) | No Commission deadline; a court claim must be started within 6 years | Fair Work Act s 370 and the general limitation period |
| Unfair dismissal application (if you choose that claim instead) | 21 days from the dismissal taking effect | Fair Work Act s 394(2) |
| Commission application fee (2026-27) | $92.70, waivable for serious financial hardship | fwc.gov.au/apply-or-lodge/fees-and-costs |
Do you need a lawyer for this?
Advice usually pays for itself when
- You were dismissed, made redundant or not brought back after leave and the 21 days are running.
- The redundancy happened while you were on leave and your role seems to have been given to your replacement.
- Your flexible work request on return was refused and the reasons look thin.
- The money is significant: a full-time salary, a bonus, a promotion you were passed over for.
- You have been offered a settlement or asked to sign a deed of release.
The free route is usually enough when
- You are still employed, the issue is a rostering or duties change, and an internal complaint has not been tried.
- You want to understand your rights before or during leave rather than respond to something that has already happened. The existing pregnancy rights guide covers that ground.
- The employer has corrected course after a written complaint and what you want is a record, not a claim.
- You are a union member.
What does the law call this?
Most pregnancy and parental leave cases are general protections claims under the Fair Work Act. Two protections overlap. Pregnancy is a protected attribute, so adverse action because of it is discrimination. Taking parental leave, requesting it, or asking for a flexible arrangement is a workplace right, so adverse action because you exercised that right is also unlawful. Adverse action is broad: dismissal, a redundancy that only lands on the person on leave, cut hours, a demotion dressed up as a restructure, a performance plan that materialises after the disclosure. Federal and state anti-discrimination laws cover the same ground in other forums, and a lawyer can advise on which forum suits, but the Fair Work Commission route is the one this page describes.
What are the deadlines?
If you were dismissed, including by a redundancy, a general protections application must be lodged with the Commission within 21 days of the dismissal (Fair Work Act s 366). If you were not dismissed but your hours were cut, your role was downgraded or you were refused a return to your old job, there is no Commission deadline, but a court claim must be started within 6 years (s 370 and the general limitation period). Waiting has a cost, though. The reverse onus works best when the timeline is fresh and the decision-maker's reasons can be tested against contemporaneous emails. And there is a further short deadline to take a dismissal claim from the Commission to court if conciliation fails, so nobody should treat the Commission step as the end of the clock.
How does the reverse onus work here?
Under Fair Work Act s 361, once you show adverse action and the protected attribute or workplace right, the employer must prove the pregnancy or the leave was not a reason for what it did. This is where these cases are unusual. The employer has to explain, with evidence and usually with the decision-maker in the witness box, why the redundancy fell on you and not on someone else, why the role that was no longer needed is being done by the person who covered your leave, or why the performance concerns surfaced a fortnight after you announced the pregnancy. Many employers settle at conciliation because that explanation is hard to give. It is not automatic, and a genuine redundancy or a real performance history predating the pregnancy can meet the burden. The Commission looks at the whole story.
What about redundancy while on parental leave?
This is the most common version of the problem. An employer can make a role genuinely redundant while someone is on leave, but genuine redundancy has a specific meaning: the job is no longer required because of changes in operational requirements, any consultation obligations in the award or agreement were met, and redeployment was not reasonable (Fair Work Act s 389). If the role still exists under a new title, if only the person on leave was consulted late or not at all, or if a comparable job was available and not offered, the redundancy looks less genuine and the general protections claim looks stronger. The free redundancy challenge letter tool helps put those questions to the employer in writing. The answers, or the absence of them, become evidence.
When does paying a lawyer pay for itself?
Liquid Employment Lawyers is a paid legal service that FairWork Mate refers people to. It is not free government help, and if the issue is a rostering slight that a written complaint can fix, a lawyer is not needed. But dismissal and redundancy cases involving pregnancy or parental leave are where advice tends to pay for itself. The claim has to be pleaded around the right attribute and the right workplace right, the choice between unfair dismissal and general protections has to be made inside 21 days and generally cannot be reversed, and the settlement figure at conciliation depends heavily on knowing what comparable matters resolve for. A lawyer also reads the deed of release before you sign it. The first conversation through FairWork Mate is free, and fees are discussed directly with the firm.
What is the free route?
The Fair Work Ombudsman is free on 13 13 94 and can explain parental leave entitlements, the return-to-work rules and the general protections process. FairWork Mate's tools are free: the general protections checker tests whether your facts fit, the discrimination claim builder organises the evidence and timeline, and the complaint letter tool drafts the internal complaint many people send first. The existing pregnancy rights guide covers safe job transfers, antenatal appointments and flexible work requests in detail, so this page does not repeat them. A union member can usually have the matter run at no extra cost. Whatever route you take, keep the paper trail: the date you disclosed, your leave notice, any acknowledgement, every email about your role, and your pre-disclosure performance reviews.
Free FairWork Mate tools for this
Talk to Liquid Employment Lawyers about this
Share a few details and their team will be in touch to talk it through. No obligation, and you decide whether to go further after that first conversation.
Liquid Employment Lawyers is an Australian employment law firm and FairWork Mate's paid referral partner, not free Fair Work advice. They discuss scope and any fees with you directly. FairWork Mate is not affiliated with the Fair Work Commission or the Fair Work Ombudsman. For free general guidance, use the tools above or call the Fair Work Ombudsman on 13 13 94.
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Common questions
I was made redundant while on parental leave. Is that automatically unlawful?
No. A genuine redundancy can happen while someone is on leave. It becomes a problem when the leave or the pregnancy was a reason for choosing you, when consultation was skipped, or when the role still exists in substance. The reverse onus means the employer has to prove otherwise, and many cannot.
Should I lodge unfair dismissal or general protections?
Both have a 21-day deadline and you generally have to pick one for the same dismissal. General protections has no minimum employment period or income threshold and puts the burden on the employer; unfair dismissal has a compensation cap and eligibility rules. The which-claim triage tool sorts it, and a lawyer can confirm before the deadline.
My employer refused my flexible work request when I came back. Is that discrimination?
It can be adverse action, and there is also a separate dispute process for flexible work refusals, which the existing pregnancy rights guide explains. The reasons the employer gives in writing matter a great deal; thin or generic reasons are a warning sign. Get advice before deciding which route to take.
Is Liquid Employment Lawyers a free service?
No. It is a private employment law firm and a paid partner FairWork Mate refers to. The first conversation through FairWork Mate is free; scope and fees are agreed with the firm. The Fair Work Ombudsman is free on 13 13 94, and FairWork Mate's tools are free.
How much can I claim?
There is no single figure, and this page does not state one. General protections compensation is worked out on the loss the adverse action caused, and the unfair dismissal compensation cap is a rule for that claim, not for general protections. A lawyer can give a range based on your facts.
Official sources
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General information and estimates only — not legal, financial or tax advice. Always check your specific award, agreement or contract, or a qualified professional, before you rely on the result.
Related legal help
21 days to lodge if you were dismissed over a protected attribute. What a discrimination claim involves, the free route, and when a lawyer is worth it.
General protections claim: do you need a lawyer for adverse actionDismissed or punished for complaining, taking leave or a workplace right? 21 days if dismissed, no compensation cap, reverse onus. When advice pays off.
Was your redundancy genuine? Challenging it, and whether you need a lawyerA redundancy is only a defence to unfair dismissal if the job really went, consultation happened and redeployment was considered. How to test it, in 21 days.
Unfair dismissal claim: do you need a lawyer, and what happens next21 days to lodge, a $92.70 fee, compensation capped at $95,050. What the Commission looks at, when a lawyer pays for itself, and the free route.