For employers
You have received a general protections claim: the reverse onus, and what to do first
A general protections application is the claim an employee makes when they say you acted against them because they complained, took leave, raised a safety issue or have a protected attribute. It is different from unfair dismissal in three ways that matter to an employer: the burden of proving the reason sits with you, there is no cap on compensation, and if it does not settle at the Commission it heads to a court. That combination is why employers take these seriously and why the first response needs care.
Updated . General information, not legal advice.
Time limits that apply
| What | Limit | Source |
|---|---|---|
| Employee's deadline to lodge (dismissal claims) | 21 days from the dismissal | Fair Work Act s 366 |
| Employer's response to the Commission | By the date the Commission sets when it sends the application; respond promptly and ask for time if you need it | Fair Work Commission process |
| Non-dismissal claims | No Commission deadline for the employee; a court claim can be started within 6 years | Fair Work Act s 370 and the general limitation period |
Do you need a lawyer for this?
Advice usually pays for itself when
- The adverse action was a dismissal, the employee earned well, and the alleged protected reason sits close in time to the decision.
- The decision-maker's reasons were never written down, or several people were involved in the decision.
- The claim is about something other than dismissal (hours, a warning, a demotion), because the path after conciliation is a court claim with a six-year window.
- The employee has a lawyer or a union.
The free route is usually enough when
- The decision was made for a clear, documented reason before the employee ever raised the matter they now rely on, and the exposure is modest.
- You mainly want to settle a small claim at the conference and can explain the real reason plainly.
What is the reverse onus and why does it change everything?
In an ordinary claim the person bringing it proves their case. In general protections, once the employee shows adverse action and a workplace right or protected attribute, the Act presumes the action was taken because of that protected thing unless the employer proves otherwise. Proving otherwise means evidence of the real reason from the person who made the decision, and that person's credibility is what the case turns on. A manager who cannot explain the decision, or who gives a reason that shifts over time, loses. A manager with a contemporaneous note of a legitimate reason, made before the complaint or leave, usually wins. Your file, and your decision-maker's memory, are the case.
What should the response contain?
The Commission's response form asks for your account, any jurisdictional objections, and the outcome you seek. The single most important thing in it is a clear statement of the actual reason for the action and who decided it. If the reason was performance, say so and point to the record. If it was a restructure, say when it was decided and by whom. Do not argue that the employee had no workplace right if they plainly did; that objection rarely succeeds and it spends credibility. Where the claim is about a dismissal, check the 21 days and the six-month or twelve-month service question only if the employee has also framed it as unfair dismissal, since general protections has no minimum period.
What does the process look like from here?
For a dismissal claim, the Commission holds a conference, which works like a conciliation. If it does not settle, the Commission issues a certificate and the employee has a short window to start a court claim, or both sides can agree to let the Commission arbitrate instead. For a non-dismissal claim, there is also a conference, but no certificate, and the employee can go to court within six years. Court means pleadings, evidence, and a judge, on a timetable measured in months or longer. Most claims settle at the conference because both sides understand that. The settlement discussion is shaped by the lack of a cap and by the strength of your evidence of reason, which is why preparing the reason before the conference matters more than anything else.
What is the exposure?
There is no compensation cap. A court can award compensation for economic loss and, in some cases, for hurt and distress, can impose penalties on the employer and on individuals involved, and can order reinstatement. Actual awards are calculated on proven loss and reduced by mitigation, so they are not automatically larger than unfair dismissal outcomes, but the ceiling is open and the penalties are real. For an employer, the practical exposure is the sum of a settlement figure, the cost of running the matter, management time, and the reputational cost if the matter is heard. That is the calculation to make before the conference, and it is the calculation a lawyer helps with.
When does a lawyer pay for itself?
When the decision-maker's evidence is the whole case and it needs to be gathered and tested before anyone else tests it. When the claim is heading towards court. When the employee is represented. And whenever the timing between the protected event and the action is close enough that the presumption will be hard to rebut without a very clear record. Liquid Employment Lawyers is FairWork Mate's paid legal partner for employers facing claims. It is an Australian employment law firm, not free government help, and it explains scope and fees before you commit. Where the decision was plainly made for a documented reason before the employee raised anything, employers can and do handle the conference themselves.
What is the free route for employers?
The Fair Work Ombudsman on 13 13 94 explains the general protections to employers, free, and its site sets out what adverse action and workplace rights mean. FairWork Mate's general protections hub and checker let you see the claim from the employee's side, and the employer speaking notes tool prepares you for the conference. Free general information, not legal advice. FairWork Mate is not affiliated with the Fair Work Commission or the Ombudsman.
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.
Prefer to read about the partnership first? About Liquid Employment Lawyers
Common questions
The employee could also have claimed unfair dismissal. Why did they choose this?
Usually because of the reverse onus, the absence of a cap, or because they did not meet the six-month minimum period for unfair dismissal. An employee cannot run both over the same dismissal.
We dismissed for performance but the employee had just complained about pay. Are we in trouble?
Not necessarily. The question is whether the complaint was a reason for the dismissal. If the performance process started before the complaint and is documented, the presumption can be rebutted. If the record starts after the complaint, it is harder.
Can individual managers be liable?
Yes. A person involved in a contravention can be ordered to pay a penalty personally. That is one reason the decision-maker should be identified early and their account recorded carefully.
Is Liquid Employment Lawyers free?
No. It is an Australian employment law firm and FairWork Mate's paid referral partner. Enquiring is free and there is no obligation. The Fair Work Ombudsman on 13 13 94 provides free information to employers.
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
The Commission asks for your response within 7 days (Form F3). What to check first, what conciliation costs, the $95,050 cap, and when a lawyer pays for itself.
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.
Workplace investigations: how to run one that holds up, and when to bring in a lawyerA flawed investigation is the most common reason a dismissal fails. Allegations in writing, a chance to respond, a support person, an uninvolved decision-maker.
An employee is threatening legal action: the first steps, and when to call a lawyerDo not retaliate, preserve the file, work out which claim is realistic and what it is worth. The 21-day windows cut both ways. When a lawyer pays for itself.