Two routes, side by side
| Fair Work general protections | Federal Acts (through the AHRC) | WA Equal Opportunity Act | |
|---|---|---|---|
| Time limit | 21 days if dismissed. No 21-day limit if you're still employed | Complaint can be terminated if lodged more than 24 months after the conduct; 60 days to court after termination | 12 months; later only on good cause |
| First step | If dismissed, Form F8 and a Commission conference. If not, an optional conference or straight to court | Complaint to the AHRC, which investigates and tries conciliation | Complaint to the Commissioner for Equal Opportunity, which investigates and tries conciliation |
| Who decides | Federal Circuit and Family Court or Federal Court | Federal Circuit and Family Court or Federal Court; leave may be needed, depending on why the complaint was terminated | State Administrative Tribunal (no fee) |
| The reason | Presumed: the employer must prove it did not act for the protected reason (s 361) | The attribute only has to be one of the reasons, not the main one | The attribute only has to be one of the reasons, not the main one |
| Compensation | No cap; can include hurt and distress | No statutory cap | Up to $40,000 (as at September 2026) |
| Costs | Each side usually pays its own; costs only for vexatious or unreasonable conduct (s 570) | A successful applicant gets costs; a losing applicant pays only in limited cases (s 46PSA) | No fee to have the tribunal hear it (s 107(5)) |
The anti-discrimination Acts apply whether you're in the national Fair Work system or a state system. The Fair Work route depends on who your employer is — see the callout below if you work in WA for a sole trader, partnership, State department or council.
Nurse complained about her treatment, then was sacked
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Wei Han, known at work as Casey, had been a registered nurse at St Basil’s aged care home in Lakemba, Sydney, for over nine years. She is Chinese. From mid-2019 her workload rose by about 40%, and, she said, she began complaining that she was overworked, unsupported and treated differently from a group of Filipino co-workers.
In August 2019 she called a colleague “a bitch” in what she said was a joke that misfired, and in September she was given a first and final warning. The court later found the warning did not breach the Fair Work Act. Ms Han kept raising concerns, including formal complaints in December 2019 that a colleague was targeting her and that others had refused to help her with residents.
Instead of investigating those complaints, the court found, the general manager turned them against her. Ms Han was called to an “outcomes meeting” with no clue what it was about, and on 23 January 2020 she was dismissed, accused of poor clinical care and of asking an unqualified team leader to give a resident oxygen. The home also complained about her to the nursing regulator, which closed the matter with no further action.
Ms Han ran the trial herself. Under the Fair Work Act’s reverse onus (s 361), St Basil’s had to prove its reasons were innocent. Justice Rares found it could not. There was no rule stopping team leaders giving oxygen, there was no objective basis for the concerns about her care, and the general manager’s “investigation” was, in his words, “a trumped up attack”. The dismissal was found to be because of Ms Han’s complaints and her race.
In May 2025 a second judge ordered St Basil’s to pay $175,000 for past lost earnings, $61,559.62 for future loss, $75,000 in general damages and $10,000 for future treatment, plus penalties of $60,000 paid to Ms Han herself.
If you are disciplined soon after making complaints at work, keep copies of your complaints and of every letter you receive. In a Fair Work general protections claim, the employer has to prove the real reason for what it did.
Compensation and penalties were set in Han v St Basil’s Homes (No 2) [2025] FCA 448 (6 May 2025). Interest and costs were left to be decided separately.
The Fair Work route: adverse action under s 351
Section 351 of the Fair Work Act 2009 (Cth) says an employer must not take adverse action against an employee, or a prospective employee, because of their:
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Adverse action is defined in s 342. Against an employee it means dismissing you, injuring you in your employment, altering your position to your prejudice, or discriminating between you and other employees. Against a job applicant it means refusing to employ you, or offering worse terms. Threatening any of these counts too.
The reverse onus
Once you show that you have the attribute and that the adverse action happened, the law presumes the employer acted for the prohibited reason unless it proves otherwise (s 361). The prohibited reason only has to be one of the reasons (s 360), but it must have been a substantial and operative one. In practice the employer has to call the person who actually made the decision to explain, on oath, why they did it. The court is looking for that person's real reasons, not what a reasonable employer might have thought.
The exceptions in s 351(2)
- Inherent requirements. Action taken because of the inherent requirements of the particular position — the things the job can't be done without — is not unlawful.
- Not unlawful under anti-discrimination law. Section 351 does not apply if the action was not unlawful under any anti-discrimination law in force where it happened. That's why a claim based on social origin, which the federal Acts don't cover, can fail.
- Religious institutions. Staff of a religious institution, where the action is taken in good faith to avoid injury to the religious susceptibilities of its adherents.
How the claim runs
If you were dismissed, lodge Form F8 with the Fair Work Commission within 21 days. The Commission holds a conference; if it doesn't settle, it issues a certificate and you can go to court. If you're still employed, there is no 21-day limit. You can ask the Commission for a conference, which goes ahead only if the employer agrees, or go straight to court. The time limit for that court claim is not settled, so consider getting professional advice about it early.
A court can order compensation for your loss with no cap — including hurt, distress and humiliation beyond the ordinary upset of losing a job — plus reinstatement and civil penalties against the employer. See general protections for the complaint and workplace-right side of the same Part.
The anti-discrimination route
The federal Acts are the Sex Discrimination Act 1984, the Racial Discrimination Act 1975, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004. Between them, they make it unlawful to discriminate in hiring, in the terms of your job, in access to promotion, transfer and training, by dismissing you, or by subjecting you to any other detriment. The WA Equal Opportunity Act 1984 covers similar ground, and some the federal Acts don't, such as religious or political conviction.
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Direct and indirect discrimination
- Direct discrimination is being treated less favourably than someone without your attribute would be treated in the same or materially similar circumstances. Example: being overlooked for a promotion because you're pregnant.
- Indirect discrimination is a rule or practice that looks neutral but disadvantages people with your attribute, and isn't reasonable in the circumstances. Example: a full-time-only rule, or a redundancy method that falls hardest on one group. The employer has to prove the rule was reasonable (Sex Discrimination Act s 7C; Disability Discrimination Act s 6(4); Age Discrimination Act s 15).
The attribute doesn't have to be the main reason. Under the federal Acts and the WA Act it's enough that it was one of the reasons, whether or not it was the dominant or a substantial one (for example Disability Discrimination Act s 10, Age Discrimination Act s 16, Equal Opportunity Act s 5). The s 361 presumption is a Fair Work Act rule. These Acts put specific burdens on the employer instead, such as proving that a rule was reasonable or that an exception applies (Equal Opportunity Act s 123).
The federal process
- Complain in writing to the Australian Human Rights Commission. It can help you put the complaint into writing.
- Investigation and conciliation. The Commission looks into the complaint and tries to resolve it by agreement.
- Termination. If the complaint can't be resolved, the President terminates it and gives you a notice. A complaint lodged more than 24 months after the conduct can be terminated for that reason alone.
- Court. You have 60 days from the date of the notice to apply to the Federal Court or the Federal Circuit and Family Court. Depending on why the complaint was terminated, you may need the court's leave. The court can award damages, order re-employment and make other orders to redress your loss.
The WA process
Complain to the Commissioner for Equal Opportunity within 12 months. A later complaint is accepted only if you show good cause. The Commissioner investigates and tries conciliation, where lawyers appear only with permission. A complaint that doesn't resolve goes to the State Administrative Tribunal. If the Commissioner dismisses your complaint instead, you have 21 days to require it to be referred to the tribunal. The tribunal can award damages for loss or damage of up to $40,000, which is not indexed. The WA Act applies to everyone working in WA, whichever industrial system you're in. Outside WA, your own state's anti-discrimination Act sets its own time limit and tribunal.
Job offer withdrawn just after his passport showed he was 71
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In July 2019 Lance Heather was offered a job as a business development manager with Hikvision, a supplier of video surveillance equipment. As part of the paperwork he sent a copy of his passport. It showed he was 71. The very next day the chief executive decided to withdraw the offer, and Mr Heather was told on 5 July 2019.
Mr Heather claimed the offer was pulled because of his age, contrary to s 351 of the Fair Work Act. Hikvision accepted that refusing to employ him was adverse action against a prospective employee, and that the reverse onus applied, so it had to prove age played no part.
The chief executive said he never saw the passport and did not know Mr Heather’s age. The HR manager admitted she noticed it but said she did not pass it on, and IT records showed the email was not forwarded. Hikvision’s explanation was a change of plan: its mid-year review showed Victorian sales falling, so it dropped its push into large corporate and government clients and moved an existing staff member into the role.
Mr Heather’s lawyers attacked that story hard. There was no strategy document, key witnesses were not called, and Hikvision had wrongly told the Fair Work Commission the offer was only conditional. Judge Riley called it “a very finely balanced case”.
What decided it was what Hikvision did next. Eighteen months later it had three business development managers, all working with entry and mid-level clients, and none chasing the big clients Mr Heather was hired for. If age had been the reason, the judge reasoned, it would have hired someone younger to do that job. The timing alone did not prove that one thing caused the other. The claim was dismissed.
If an offer is withdrawn soon after your age comes to light, the law presumes age was a reason. But an employer can rebut that with convincing evidence of a genuine change of plan, and what it does afterwards often decides the case.
Disability, injury and reasonable adjustments
This is where the two routes differ most.
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- The Disability Discrimination Act defines disability broadly. It covers physical and mental conditions, illness and disease, past and future disabilities, a disability someone imputes to you, and behaviour that is a symptom of the disability.
- It requires reasonable adjustments. Failing to make reasonable adjustments can itself be discrimination (ss 5(2) and 6(2)). An adjustment is reasonable unless it would impose unjustifiable hardship on the employer.
- Its inherent requirements exception looks at adjustments. It applies only if you couldn't do the inherent requirements of the work even with reasonable adjustments (s 21A), taking account of your training, experience and past performance. That is an objective test, unlike s 351, where it turns on the decision-maker's reasons.
- Section 351 has no adjustments duty. A claim framed as a failure to adjust still has to prove the failure was adverse action taken because of the disability. The weight of Fair Work authority also says you must actually have the disability; being wrongly thought to have one is probably not enough.
- Section 351's inherent requirements test turns on the employer's reasons. An honest belief that you couldn't do the job can be enough, even if it was mistaken.
Two other protections often sit alongside a disability claim. Section 352 of the Fair Work Act prohibits dismissal because you're temporarily absent through illness or injury. It's limited to absences of up to three months in a 12-month period, properly evidenced (usually by a medical certificate). In WA, the Workers Compensation and Injury Management Act 2023 (WA) says an employer must not dismiss an injured worker solely or mainly because of their incapacity in the 12 months from when the injury first leaves them unable to work, and must give 28 days' notice before dismissing them for any reason in that period (ss 166, 168).
The situations that come up most
Pregnancy, and coming back from parental leave
Pregnancy is listed in s 351. The Sex Discrimination Act also covers potential pregnancy (such as being thought likely to become pregnant) and breastfeeding. A role can still be genuinely made redundant while you're on leave. But if your pregnancy or caring responsibilities were a reason for choosing you, it can be unlawful. If you're returning from parental leave, you can make a written request to work part-time under s 65, and in some cases a refusal of that request may itself be discrimination because of family responsibilities.
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A medical condition or injury
Watch for decisions made while you're off work, being "managed out" after you disclose a diagnosis, or a refusal to consider adjustments. Keep your medical certificates, your requests and the employer's replies. Whether the condition affects an inherent requirement of the job is usually the central question.
Age, especially in a restructure
Selecting older workers for redundancy, or dismissing someone because they reached an age the employer has set, can be age discrimination. A neutral-looking selection method can also be indirect discrimination if it falls unfairly on one group. The High Court found this in a "last on, first off" redundancy (there, against women). Age can sometimes be an inherent requirement of a particular job — see Christie below.
Carer's responsibilities and flexible work
If you have 12 months' service (regular casuals can qualify too) and you're pregnant, a parent of a school-age or younger child, a carer, 55 or older, have a disability or are experiencing family and domestic violence, you can request flexible working arrangements in writing (s 65). The employer must respond in writing within 21 days. It can refuse only after discussing the request with you and genuinely trying to reach agreement, having regard to the consequences for you, and only on reasonable business grounds (s 65A). Disputes can go to the Fair Work Commission (ss 65B–65C). WA state-system employees have a similar right under the Minimum Conditions of Employment Act 1993 (WA), with disputes going to the WA Industrial Relations Commission. Being treated worse because of your caring responsibilities is covered by s 351, by the Sex Discrimination Act, and by the WA Act's family responsibility ground.
Choosing where to go: you usually get one shot
The Fair Work Act stops you running two claims about the same thing.
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- About a dismissal: you can't pursue more than one of a general protections claim, an unfair dismissal claim, an unlawful termination claim, or a complaint under another law — including an AHRC or Equal Opportunity complaint — about the same dismissal (ss 725–732). Generally only withdrawing a claim, or having it fail for want of jurisdiction, reopens the others. An AHRC complaint that you later amend to cover the dismissal counts from the date you amend it.
- About conduct short of dismissal: you can't make a general protections court application while an AHRC or anti-discrimination complaint about the same conduct is on foot, and the reverse also applies (s 734).
The routes differ on the time limit you're still inside, the cap, who has to prove the reason, and the costs risk, so consider getting professional advice on which one fits before you lodge anything. In a Fair Work court case, costs are ordered against you only if you brought the case vexatiously or without reasonable cause, or acted unreasonably (s 570). In a federal discrimination case begun after an AHRC termination, a successful applicant must be awarded costs, and a losing applicant pays only in limited cases (Australian Human Rights Commission Act s 46PSA). One of those cases is where the employer has no significant power advantage and no significantly greater resources.
What to do now
- Write the timeline. When you disclosed the pregnancy, diagnosis or caring need, who knew, and what changed afterwards. The sequence is often the strongest evidence you have.
- Keep the documents. Emails, texts, rosters and pay records from before and after, performance reviews, your adjustment or flexibility requests and the answers.
- Find a comparison. How was someone without your attribute treated in the same situation?
- Identify the decision-maker and what they knew about your attribute.
- Check the clock today. If you've been dismissed, the 21 days may be the one that decides everything.
