General Protections Claims (Adverse Action) in Australia: A Guide for Employers

What are general protections claims?

Part 3-1 of the Fair Work Act prohibits a person from taking adverse action against another person for a prohibited reason. The prohibited reasons fall broadly into three groups:

• because the other person has, has exercised, or proposes to exercise a workplace right (ss 340, 341);
• because of industrial activity (ss 346, 347), including certain conduct concerning membership of, or activities of, an industrial association; and
• because of a protected attribute under section 351 (for example, race, sex, disability, age, pregnancy, family or carer's responsibilities).

A general protections claim addresses why the decision was made. Unfair dismissal addresses how the dismissal was carried out. Compare our companion article on unfair dismissal claims in Australia.

What is adverse action?

Section 342 defines adverse action by reference to a table of relationships. By an employer against an employee it includes:

• dismissing the employee;
• injuring the employee in their employment (for example, removing duties or withdrawing a discretionary benefit);
• altering the position of the employee to the employee's prejudice (for example, a demotion or a change of reporting line or hours); or
• discriminating between the employee and other employees of the employer.

Section 342 also identifies adverse action in the prospective-employment relationship (including refusing to employ a prospective employee), by principals against independent contractors, and by and against industrial associations. Section 342(2) provides that threatening to take adverse action, and organising adverse action, are themselves adverse action.

Workplace rights (s 341)

Section 341 defines workplace rights in broad terms. A person has a workplace right if the person:

• has an entitlement, role or responsibility under a workplace law, instrument or order — for example, the Fair Work Act, the National Employment Standards, a modern award, an enterprise agreement, or a Commission order;
• is able to initiate or participate in a process or proceedings under a workplace law; or
• is able to make a complaint or inquiry in relation to their employment (this includes an internal complaint or inquiry to the employer about a matter connected with the person's employment).

Undue influence or pressure by an employer on an employee in relation to a decision by the employee to exercise, or not exercise, a workplace right, is separately prohibited by section 344.

Industrial activity and Division 4 (ss 346–350)

Section 346 prohibits adverse action because of industrial activity as defined in section 347 (including being or not being a member of an industrial association, and engaging or refusing to engage in specified lawful industrial activities).

Section 348 prohibits coercion — organising or taking, or threatening to organise or take, any action against another person with intent to coerce them to engage in, or not engage in, industrial activity.

Section 349 prohibits knowingly or recklessly making a false or misleading representation about a person's obligation to engage in, or disclose, industrial activity.

Section 350 is headed “Inducements — membership action”. It prohibits an employer from inducing an employee, and an industrial association or its officer or member from inducing another person, to take specified action affecting membership of an industrial association. It is not a general undue-influence or workplace-pressure provision: the general undue-influence-and-pressure provision concerning workplace rights is section 344.

Temporary absence due to illness or injury (s 352)

Section 352 prohibits dismissing an employee because of a temporary absence from work due to illness or injury of a kind prescribed by the Fair Work Regulations 2009 (Cth). Regulation 3.01 sets out alternative evidentiary pathways, including medical certificates or statutory declarations, and should not be reduced to a simple three-month rule. Broadly, the prescribed temporary-absence protection is excluded where the employee's illness or injury absences total more than three months in a 12-month period and the employee is not on paid personal/carer's leave for the duration of the absence. The evidence, dates and paid-leave status should be checked in each case. Other provisions (including sections 340 and 351 and the disability discrimination framework) may remain relevant.

Discrimination under s 351 and the s 351(2) exceptions

Section 351(1) prohibits an employer from taking adverse action against an employee or prospective employee because of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction, social origin, or subjection to family and domestic violence (added by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023).

Section 351(2) contains three exceptions:

• Section 351(2)(a): section 351(1) does not apply to action that is not unlawful under any anti-discrimination law in force in the place where the action is taken. That expression covers applicable Commonwealth anti-discrimination laws (for example, the Sex Discrimination Act 1984 (Cth), the Age Discrimination Act 2004 (Cth), the Disability Discrimination Act 1992 (Cth) and the Racial Discrimination Act 1975 (Cth)) as well as the State or Territory anti-discrimination Act governing the workplace. If the conduct is unlawful under any of those laws in the relevant place, the exception is not engaged.
• Section 351(2)(b): section 351(1) does not apply to action taken because of the inherent requirements of the particular position concerned. Whether the exception is made out is a question of evidence about the actual duties of the specific role and the employee's actual capacity to perform them.
• Section 351(2)(c): preserves specified action by institutions conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, and by persons in relation to certain religious educational institutions, in accordance with the current terms of the section.

The presumption as to reason (ss 360–361)

The applicant must first prove the objective facts constituting the pleaded contravention — that adverse action within section 342 occurred, that the applicant held the alleged workplace right, engaged in the alleged industrial activity or held the alleged protected attribute, and any other objective element required to establish the cause of action pleaded.

Section 361 then provides that, if it is alleged that a person took action for a particular reason (or with a particular intent), it is presumed the action was taken for that reason (or with that intent) unless the person proves otherwise.

Section 360 provides that a person takes action for a particular reason if the reasons for the action include that reason. It is therefore not sufficient for a respondent to identify another reason for the action; the respondent must displace the presumption that the alleged reason was among the reasons.

The leading authorities are Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243. Those decisions confirm that the inquiry is directed to the actual mental process of the actual decision-maker at the time of the decision, and that credible direct evidence from that decision-maker — tested against contemporaneous documents — can discharge the onus.

Evidence and decision-maker testimony

Because the section 361 onus is directed at the actual reasons of the actual decision-maker, evidence from that decision-maker is generally required. Contemporaneous documents (file notes, performance records, correspondence, board or HR minutes and legal or HR advice recorded at the time) are frequently determinative, because the decision-maker's oral evidence will be tested against them.

Performance management and disciplinary action

Performance management and disciplinary action are lawful. General-protections exposure arises particularly where such action starts, escalates or concludes in close temporal proximity to a protected event — for example, a complaint, a leave request, a workers compensation claim, a return from parental leave, an inquiry about an entitlement, or industrial activity.

Where the alleged misconduct itself involves the exercise of a workplace right (for example, refusing what the employee says was an unlawful direction, or making an internal complaint), disciplining an employee for the manner in which they exercised the right is treated, for these purposes, as disciplining them for the right itself. Documented, contemporaneous, criteria-based reasoning is important. See also our companion articles on procedural fairness in workplace investigations, common mistakes in workplace investigations and suspension pending investigation.

Redundancy and adverse action

Redundancy is not itself a defence to an adverse-action claim. The relevant questions are why the role was made redundant and why the particular employee was selected. Where selection criteria or scoring can be tied to a protected reason, the redundancy will not defeat the claim. Criteria-based, contemporaneously documented selection with a recorded redeployment search is more defensible than a process assembled after the fact.

Time limits and multiple-action rules

A general protections application involving dismissal must be lodged with the Fair Work Commission within 21 days after the dismissal takes effect (s 366(1)(a)). The Commission may extend that period only in exceptional circumstances (s 366(2)). A general protections court application not involving dismissal can be commenced within 6 years of the alleged contravention (s 544).

The multiple-action rules are in Part 6-1 (ss 725–734). Section 725 prohibits a person from making multiple applications in relation to the same dismissal across the jurisdictions specified in that Part — including a general protections dismissal application, an unfair dismissal application, an unlawful termination application, and applications for remedies under prescribed Commonwealth, State or Territory anti-discrimination laws (as identified in section 732 and the associated provisions). Sections 726 to 732 identify how each of those competing applications interacts. Non-dismissal discrimination complaints are not caught by the dismissal-election framework in the same way; the precise bar depends on which specific application has already been made, and legal advice should be taken before making or responding to any competing application.

The Fair Work Commission process

Section 368 requires the Fair Work Commission, on receipt of a general protections dismissal application, to deal with the dispute (other than by arbitration). In practice the Commission commonly deals with the dispute by conference or conciliation. The process is confidential and directed at resolution. If the dispute is not resolved, the Commission issues a certificate under section 368(3).

Section 369 allows the parties, by consent, to have the Commission arbitrate the dispute after a certificate has been issued. If the parties do not consent to arbitration, section 370 requires any general protections court application to be made within 14 days after the certificate is issued (unless the court allows a further period). The Commission does not itself determine the merits of the general protections dismissal application in the ordinary pathway, and does not award general compensation, unless the parties consent to arbitration under section 369.

Non-dismissal general protections claims do not require a Commission certificate and may be commenced directly in court under section 544.

Court proceedings

Proceedings are filed in the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2). Proceedings are conducted as conventional civil litigation, with pleadings, discovery, evidence and a contested hearing.

Section 570 of the Fair Work Act provides that costs are not awarded in proceedings under the Act except in the specified circumstances (broadly, where the proceedings were instituted vexatiously or without reasonable cause, where an unreasonable act or omission caused costs to be incurred, or in certain circumstances involving unreasonable failure to accept a settlement offer). This restricts the ordinary costs-follow-the-event position.

Remedies

Where the court finds a contravention, the available remedies under sections 545 to 547 include:

• Reinstatement to the former or a comparable position;
• Injunctions restraining further contraventions;
• Compensation for loss suffered as a result of the contravention (including economic loss and damages for hurt, distress and humiliation), which is not subject to the statutory compensation cap that applies to unfair-dismissal compensation;
• Civil penalties against the corporate respondent and any individual involved in the contravention; and
• interest and other ancillary orders.

Penalties

Civil penalties for general-protections contraventions are set in penalty units. Under section 539(2), item 11 of the current civil-remedy table states 60 penalty units for a contravention of Part 3-1. Under section 546(2), the maximum is 60 penalty units for an individual and, for a body corporate, five times that amount. With the Commonwealth penalty unit at $364 from 1 July 2026, the maximum for item 11 is $21,840 for an individual and $109,200 for a body corporate as at 22 July 2026. The penalty unit is indexed periodically and should be checked at the date of decision.

Penalties are payable to the Commonwealth by default, though the court may order on application that they be paid to the applicant or to a particular organisation.

Compensation

Compensation under section 545 is not subject to the statutory compensation cap that applies to unfair-dismissal compensation. Economic loss is calculated on conventional principles — net wages and benefits lost, less amounts mitigated. Damages for non-economic loss (hurt, distress and humiliation) are assessed on the evidence. Compensation under section 545 is not subject to the statutory compensation cap that applies to unfair-dismissal compensation; remedies remain discretionary and loss must be established.

Personal liability of managers (s 550)

Section 550 extends liability to any person “involved in” a contravention. A person is involved in a contravention if the person aided, abetted, counselled or procured the contravention, induced it (whether by threat, promise or otherwise), was in any way knowingly concerned in or party to it, or conspired with others to effect it.

Individual managers, directors or HR personnel may be joined where the pleaded facts support involvement under section 550. Individual respondents can be ordered to pay civil penalties and compensation in their own right.

Practical employer guidance

• Train managers on what counts as a workplace right — especially internal complaints, leave requests, safety issues and inquiries about pay or entitlements;
• Record the actual reasons for significant decisions contemporaneously, in the decision-maker's own words;
• Consider whether performance management is on foot before, and continues on grounds independent of, any protected event;
• Obtain legal advice before terminating or disciplining an employee during or shortly after a complaint, a period of leave, a workers compensation claim, a return from parental leave, or industrial activity;
• Ensure the actual decision-maker can explain, in writing and if necessary on oath, the actual reasons for the decision;
• On receipt of a Form F8 application, issue a litigation-hold instruction to preserve documents and obtain advice before responding.

How Parke Lawyers assists employers

We act for Australian employers, directors, HR teams and in-house counsel on:

• pre-decision advice on dismissal, discipline, performance management and restructure where general protections exposure is in play;
• responding to Form F8 applications in the Fair Work Commission, including conference strategy and negotiation;
• defending general-protections proceedings in the Federal Court and the Federal Circuit and Family Court;
• advising individual managers, directors and HR personnel joined as personal respondents under section 550; and
• broader employer-side advice on employment law and litigation and dispute resolution, including the commercial and business law consequences that follow.

Related Information Centre articles

• Unfair Dismissal Claims in Australia
• Can an Employer Terminate Employment for Serious Misconduct?
• Procedural Fairness in Workplace Investigations
• Workplace Investigations: Common Mistakes
• Suspension Pending Investigation

Frequently Asked Questions