General Protections

Many people have heard of unfair dismissal but not general protections. A general protections claim asks why your employer acted. There is no minimum employment period, no income threshold and no cap on compensation, and it covers harmful action short of dismissal too.

The general protections in Part 3-1 of the Fair Work Act 2009 (Cth) make it unlawful for an employer to take adverse action against you for a prohibited reason. The prohibited reasons protect:

  • your workplace rights, such as making a complaint or inquiry about your employment, taking leave or claiming an entitlement;
  • your freedom of association, including union membership or non-membership; and
  • you from being dismissed because of a temporary absence from work through illness or injury.

Unlike unfair dismissal, a general protections claim has no minimum employment period, no income threshold and no cap on compensation, and it is not limited to dismissal. The Fair Work Commission’s guide to general protections is a useful starting point, but its pages have not caught up with a change from 7 July 2026: you no longer have to show you were dismissed in order to apply, because an alleged dismissal is enough (see below).

If you have been dismissed, you have 21 days from the day the dismissal took effect to lodge a general protections application (Form F8) with the Fair Work Commission (s 366). The Commission holds a conference to try to resolve the dispute. If it does not resolve, the Commission issues a certificate, and you then have 14 days to start proceedings in the Federal Court or the Federal Circuit and Family Court of Australia (s 370). The steps are set out in full below.

These protections generally do not apply against a WA state system employer such as a sole trader, a partnership or a WA government agency, and whether they apply against a WA local government depends on the council. Other claims are available instead; see our WA state system guide and get advice quickly.

Meaning of adverse action

An employer takes adverse action against an employee if the employer (s 342):

  • dismisses the employee;
  • injures the employee in their employment;
  • alters the employee’s position to their prejudice, for example by demoting them, cutting their hours or shifts, or changing their role; or
  • discriminates between the employee and other employees.

Threatening to do any of these is also adverse action, and so is refusing to employ a prospective employee or offering them different terms. The Commission gives examples such as being fired, being demoted, being overlooked for promotion, being treated differently from others, and having your shifts cut.

Action taken for a legitimate reason is not unlawful. For example, making a role redundant when it is genuinely no longer needed, or standing an employee down when the law allows it, is not adverse action taken for a prohibited reason.

Meaning of workplace right

An employer must not take adverse action against you because you (s 340):

  • have a workplace right;
  • have, or have not, exercised a workplace right; or
  • propose, or propose not, to exercise a workplace right, or have at any time done so.

You have a workplace right if you (s 341):

  • are entitled to the benefit of, or have a role or responsibility under, a workplace law, workplace instrument (such as an award or enterprise agreement) or an order of an industrial body;
  • are able to start, or take part in, a process or proceedings under a workplace law or workplace instrument; or
  • are able to make a complaint or inquiry to a person or body with power to seek compliance with a workplace law or instrument, or, if you are an employee, in relation to your employment.

The High Court has confirmed that s 341 identifies workplace rights as a matter of substance, and that the protection can apply to action taken to stop you exercising a right in the future (Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27).

Here are some common examples where taking adverse action against an employee, including dismissing them, can breach the workplace rights protections:

  • The employee makes a complaint about their employment, for example about bullying, workload, pay, conditions, work practices, harassment or safety. The complaint can be formal or informal, written or verbal, as long as it is genuinely about their employment.
  • The employee makes an inquiry about their employment, for example about pay, overtime or allowances under an award, asking for a copy of their contract, or asking for their superannuation history.
  • The employee makes, or is able to make, a workers’ compensation claim.
  • The employee raises unsafe work conditions, has a role under a safety law, or reports a safety issue to WorkSafe.
  • The employee lodges, or is able to lodge, a bullying or sexual harassment application with the Fair Work Commission, or a complaint to the Fair Work Ombudsman.
  • The employee uses a right under the law, for example taking sick leave, carer’s leave, annual leave, parental leave, family and domestic violence leave or long service leave, reasonably refusing to work on a public holiday or unreasonable overtime, asking for flexible working arrangements, or reasonably refusing work contact outside working hours under the right to disconnect (s 333M, which the Act confirms is a workplace right).
Workplace discrimination
Workplace discrimination

An employer must not take adverse action against an employee, or a prospective employee, because of their race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin (s 351). The attributes of gender identity and intersex status were added in December 2022, and subjection to family and domestic violence in December 2023.

There are limited exceptions, where the action is:

  • not unlawful under the anti-discrimination law in force where it was taken, such as the Equal Opportunity Act 1984 (WA);
  • taken against a staff member of a religious institution, in good faith and to avoid injury to the religious susceptibilities of adherents of that religion or creed.
Temporary Absence From Work

It is unlawful for an employer to dismiss an employee because they are temporarily absent from work because of illness or injury (s 352). The Fair Work Regulations set out what counts as a temporary absence, including rules about providing a medical certificate and the length of the absence. How your absences are counted can decide the claim, so get advice early.

Union Membership

It is unlawful to take adverse action against an employee because they are, or are not, a union member, or because they take part, or refuse to take part, in lawful industrial activity (ss 346-347). It is also unlawful to coerce someone into exercising, or not exercising, a workplace right (s 343), or to mislead them about their workplace rights (s 345).

Why This Claim Can Be Strong: The Reverse Onus

In most cases the person making a claim has to prove it. General protections are different. Under s 361 of the Fair Work Act, once you show that the adverse action happened and that you had the workplace right or attribute you rely on, the law presumes your employer acted for the prohibited reason. Your employer must then prove that it did not.

Usually that means the person who actually made the decision has to give evidence about their reasons, and the court has to accept that evidence. The High Court has held that the inquiry is into the actual reasons of the decision-maker, and that credible evidence of a different reason can discharge the onus (Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41).

The prohibited reason does not need to be the only reason. It is enough if it was a substantial and operative reason (s 360). Timing matters too: a dismissal soon after a complaint or a leave request is the kind of fact that brings the presumption into play.

Dismissal and Non-Dismissal Claims

If you have been dismissed (including being forced to resign), you lodge Form F8 with the Fair Work Commission within 21 days of the dismissal taking effect (ss 365-366). An extension is possible only in exceptional circumstances, and the Commission says most extension requests are refused.

From 7 July 2026, if you allege you were dismissed for a prohibited reason, including a forced resignation or a fixed-term ending you dispute, lodge Form F8 within 21 days of the alleged dismissal (ss 365-366, as amended by the Workplace Relations Legislation Amendment (Building Cooperative Workplaces No. 1) Act 2026 (Cth), Act No. 62, 2026). The Commission does not have to decide whether you were dismissed before it holds the conference (s 368(1A)), so an employer’s argument that you resigned does not stop the application. You still have to prove the dismissal if the case goes to court. If in doubt, treat the 21 days as running.

If you have not been dismissed, for example you were demoted, had your hours cut, were refused a promotion or were threatened, there is no 21-day limit. You can apply to the Commission for a conference using Form F8C, but the conference goes ahead only if your employer agrees to take part (ss 372, 374), or you can go straight to court. Do not delay: act promptly and get advice about the time limit that applies to your situation.

You generally cannot bring a general protections claim and an unfair dismissal claim (or a discrimination complaint) about the same dismissal (ss 725-732). Choosing the right claim at the start matters, because the choice is hard to undo. See our unfair dismissal guide.

How a General Protections Dismissal Claim Works
  1. Apply to the Fair Work Commission on Form F8 within 21 days. The application fee is $92.70 for 2026-27 ($89.70 in 2025-26), and it can be waived for serious financial hardship. The employer has 7 days to respond. See the Commission’s page on general protections applications involving dismissal.
  1. Conference: the Commission helps both sides talk and try to agree an outcome, such as compensation, a statement of service, confidentiality or reinstatement. It does not investigate or decide who is right.
  1. Certificate: if the dispute is not resolved, the Commission issues a certificate. The Commission must advise the parties if it considers that arbitration or a court application would not have a reasonable prospect of success (s 368(3)(b)).
  1. Court or arbitration: within 14 days of the certificate, you can start proceedings in the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) (s 370). If both sides agree, the Commission can decide the dispute by arbitration instead (s 369).
  1. In court: there is usually a mediation before trial, and many cases settle at that stage. If not, the court hears the evidence and decides.
What a Court Can Order

There is no cap on compensation in a general protections case. A court can order compensation for lost income and for hurt, distress and humiliation, reinstatement, and other orders it considers appropriate (s 545).

It can also order the employer to pay a civil penalty, and can order that the penalty be paid to you. People involved in the contravention, such as a manager, HR officer or director who knowingly took part, can be personally liable (s 550).

Costs are limited in court. A party can be ordered to pay the other side’s costs only if it started the case vexatiously or without reasonable cause, or caused costs by an unreasonable act or omission (s 570).

Contact us for a free discussion

MKI Legal can assist in all aspects of general protections claims in the Fair Work Commission, the Federal Court and the Federal Circuit and Family Court of Australia. If you have been dismissed or experienced any adverse action in the workplace, contact us for a free discussion about whether you can lodge a general protections claim. If you have been dismissed, remember the 21-day deadline.