General protections and adverse action

Part 3-1 of the Fair Work Act makes it unlawful for an employer to take 'adverse action' against an employee for a prohibited reason. Adverse action includes dismissing you, injuring you in your employment, altering your position to your disadvantage, or discriminating against you. The central question in any claim is simply: why was the action taken?

The action is unlawful if a prohibited reason (such as you exercising a workplace right) was a substantial and operative reason for it. It does not have to be the only reason.

A 'workplace right' is defined broadly (section 341). You have a workplace right if you are entitled to a benefit under a workplace law or instrument, if you can take part in a process under a workplace law, or if you are able to make a complaint or inquiry about your employment.

Once you show that the adverse action happened and that you had or used a workplace right, section 361 presumes the action was taken for that reason, unless the employer proves it was not. This reverse onus is what makes general protections so significant: the employer has to come forward and prove the real reason for what it did.

It is not a free pass. You still have to establish that the adverse action occurred and that you held the workplace right, and a court still assesses the actual loss. But the burden of explaining the reason sits with the employer.

If the adverse action was a dismissal, you have 21 days to lodge a general protections application with the Fair Work Commission (section 366), the same short window as unfair dismissal. Extensions need exceptional circumstances.

If the matter does not involve dismissal, there is no 21-day deadline; a court application for the contravention can generally be brought within 6 years (section 544). The Commission can also help conciliate a non-dismissal dispute, but only if both sides agree.

General protections remedies are broader than unfair dismissal. A court can order compensation that is not capped and can include non-economic loss such as hurt and distress, plus reinstatement, injunctions, and civil penalties against the employer.

There is a catch on process: the Commission usually conciliates first, but if the dismissal matter does not settle it is the Federal Court or the Federal Circuit and Family Court, not the Commission, that decides the case and orders any compensation or penalty.