What the law protects
A claim needs a protected reason. Unfairness on its own — even serious unfairness — is not one. These are the reasons the Act protects.
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| The reason | What it covers | Section |
|---|---|---|
| A workplace right | Being entitled to something under a law, award or enterprise agreement (leave, pay, safety); being able to start or take part in a process under a workplace law; being able to make a complaint or inquiry about your employment. It covers having the right, using it, proposing to use it, and action taken to stop you using it. | ss 340–341 |
| Industrial activity | Being, or not being, a union member or officer, and taking part (or refusing to take part) in lawful union activity. | ss 346–347 |
| A protected attribute | 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 |
| Temporary absence through illness or injury | Being dismissed because you were off sick or injured, if the absence is of a kind the regulations protect. | s 352 |
What counts as adverse action
For an employee, adverse action means dismissing you, injuring you in your employment, altering your position to your prejudice (fewer shifts, a demotion, duties taken away, less job security), or discriminating between you and other employees. A threat to do any of these counts too. It also covers refusing to employ a job applicant, or offering them worse terms. Simply starting an investigation or a disciplinary process is not adverse action on its own — it depends on what is done and why.
Complaints: not every grievance counts
Complaining about your employment is protected, but not every grievance is a complaint in law. In practice each communication is tested separately, on four points:
- Was it actually made? A dated email settles this. A conversation your employer denies becomes a contest of credibility.
- Was it a complaint or an inquiry? A complaint expresses a genuine grievance and seeks something to be done about it. An inquiry is a request for information. A bare observation or a request for help may be neither.
- Was it about your own employment? Your pay, hours, safety or treatment — not a colleague's, and not general frustration with how the business is run.
- Were you able to make it? The Full Federal Court has said the ability to complain has to come from somewhere — your contract, an award or agreement, a statute, a grievance procedure, or the general law. That source is read broadly, but it has to exist.
Two things do not matter: whether the complaint was right, and whether the entitlement you complained about actually existed. A genuine complaint about a bonus you were wrong about is still a complaint. And a complaint made to your employer counts — it does not have to go to an outside body.
Sick leave and s 352
Section 352 protects you from dismissal while you are temporarily absent through illness or injury, if you gave your employer a medical certificate or statutory declaration within 24 hours of the absence starting (or a longer period that was reasonable), or otherwise gave the evidence your award, agreement or the Act requires. The protection generally falls away once the absence runs past three months, or your absences total more than three months in 12 months, unless you are on paid personal leave for the whole of it. Being dismissed during an absence is not unlawful in itself — the absence has to be the reason.
Personal attributes and the exceptions
Section 351 has three exceptions. Action is not caught if it is not unlawful under the anti-discrimination law of the place where it happened; if it is taken because of the inherent requirements of the particular job; or, in limited cases, if it is taken in good faith by a religious institution. Inherent requirements are the essentials of the particular position, not a roster or an administrative preference. Unlike disability discrimination law, s 351 does not itself require reasonable adjustments.
Safety rep sacked after calling WorkSafe wins reinstatement
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Paul Hes had worked for nearly eight years at Melbourne Precast, a precast concrete factory in Carrum Downs, Victoria. On 18 February 2020 the yard workers elected him their health and safety representative. Later that day he rang WorkSafe about how management had handled a day of bushfire smoke in January, and what he called a failure to consult on safety.
The director, Mr Pichler, was told of the complaint. The same day his consultants emailed him about "the safety rep who is 'running off' to WorkSafe". On 21 February he sent all staff a notice naming Mr Hes among people who "seem to not care" about the company's survival.
On 13 March Mr Pichler announced two or three redundancies. On 20 March he called Mr Hes in, called him a poor performer and showed him a score sheet giving him 19 out of 30.
The construction union, the CFMMEU, sued alongside him in the Federal Court. The company then had to prove the dismissal was not for the reasons alleged.
It could not. Mr Pichler swore Mr Hes had the second-lowest score; a worker who scored 18 kept his job. The judge found the sheet was a contrivance to hide the real reason, that Mr Pichler's account "defies belief", and that Mr Hes's work had never been criticised. He was sacked for his safety role and WorkSafe complaints, in breach of s 340. The company also broke its enterprise agreement by failing to consult, and Mr Pichler was personally liable.
On 21 August 2020 the court ordered the company to give Mr Hes his job back with no break in service, and to pay $23,631.15 in lost wages and $3,716.03 in superannuation. On 14 September 2020 it added $10,000 for hurt and humiliation, and penalties of $50,000 against the company and $10,000 against Mr Pichler, payable to the union.
If you are chosen for redundancy soon after raising safety concerns or contacting a regulator, it is worth asking how the selection was made and keeping a copy of any document you are shown.
The reverse onus — and what it means in practice
Section 361 is the feature that makes this claim different. If you allege your employer acted for a prohibited reason, the law presumes that it did unless your employer proves otherwise, on the balance of probabilities. Section 360 adds that the prohibited reason only has to be one of the reasons — if it was a substantial and operative reason, that is enough, even alongside legitimate ones.
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What you still have to prove
The presumption covers only the reason. You must prove the rest as facts: that you had the workplace right or attribute, and that the adverse action happened. A claim built on the presumption alone fails at that first step.
What your employer has to do
- Call the decision-maker. The question is what was actually in the mind of the person who decided — and of anyone whose input materially shaped the decision. Without their evidence it is generally extremely difficult to displace the presumption.
- Be believed. An honest-sounding denial is not automatically enough. It is weighed against the documents, the timing and everything else.
- Show a real, separate reason. Documented performance or conduct concerns that pre-date your complaint, leave or disclosure are the usual answer.
Calling it a redundancy does not end the inquiry either. The question is still why you were selected or why the role went. A genuine restructure affecting a whole group is usually a strong answer; a "redundancy" that lands on the one person who just complained is not.
Dismissed, or not dismissed: two different paths
| If you were dismissed (s 365) | If you were not dismissed (s 372) | |
|---|---|---|
| Time limit | 21 days from the dismissal taking effect; later only in exceptional circumstances | No 21-day limit — but get advice on the time limit for a court claim before you wait |
| First step | Form F8 to the Fair Work Commission | Either apply to the Commission, or go straight to court |
| At the Commission | A private conference to try to settle it. If it does not resolve, the Commission issues a certificate | A conference only if your employer agrees to take part (s 374) |
| Going to court | Within 14 days of the certificate (the court can allow longer), to the Federal Circuit and Family Court or the Federal Court. Or, if both sides agree, the Commission can arbitrate instead | No certificate needed |
The F8 application fee is $92.70 from 1 July 2026, and it can be waived for serious hardship. The Commission's job at the conference is to help the parties settle. It cannot decide the claim unless both sides consent to arbitration. If it thinks a court case would have no reasonable prospect of success, it must tell the parties so.
Removal announced to 423 colleagues, then dismissed
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Ms Wong managed National Australia Bank's internet banking platform from July 2015. From early 2016 she raised many concerns with her managers: about staffing, about colleagues' work, and about rising costs on a large payments project. On 21 March 2017 she was removed from her role. That afternoon an email announcing her replacement went to 423 NAB employees. On 11 May 2017 the bank dismissed her.
She sued under s 340 of the Fair Work Act, saying the bank acted because of 19 complaints and two inquiries she had made. The court accepted that all three steps were adverse action, including the email, because some colleagues thought less of her after reading it.
Not every concern counted. NAB accepted that 11 of her complaints and inquiries were protected. Of the rest, the judge found two were reports and suggestions rather than complaints. The others did not concern any right or entitlement she held, so on the law as the judge applied it they were not workplace rights.
The case turned on why the bank acted. The general manager who made both decisions, Ms MacLeod, did not know about the earlier complaints when she removed Ms Wong. The judge accepted her stated reasons: the platform's performance and Ms Wong's behaviour. Ms MacLeod dismissed her, the judge found, because Ms Wong had not engaged with those concerns, not because her later emails were complaints. Ms Wong's direct manager did know of the complaints, but the judge found him a very impressive witness who genuinely held critical views of her. Whether those views were fair was not the question.
A defamation claim over the email also failed. The court found the email did not suggest misconduct or incompetence, and was in any event protected by qualified privilege. The application was dismissed.
If you lose your job after raising concerns, the court asks why the decision-maker acted, not whether the decision was fair. It is worth keeping a record of what you raised, with whom and when, because who knew about it can decide the case.
Her appeal was dismissed by the Full Court of the Federal Court on 8 September 2022 (Wong v National Australia Bank Limited [2022] FCAFC 155). The Full Court held that her direct manager's reasons should have been treated as part of the bank's reasons, but upheld the finding that he was not motivated by her complaints.
General protections or unfair dismissal? You generally get one
If you were dismissed, both claims may look open. Section 725 of the Act stops you running more than one claim about the same dismissal. Lodging one blocks the others for as long as it is on foot — that is, until it is withdrawn or fails because the Commission or court has no jurisdiction. The rule covers:
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- an unfair dismissal application (s 394)
- a general protections dismissal application to the Commission, or a general protections court application
- an unlawful termination application (s 773)
- a complaint or application about the dismissal under another law — including a discrimination complaint to the Australian Human Rights Commission or a state anti-discrimination body (s 732)
An unfair dismissal claim that fails because the Commission finds a genuine redundancy does not block a later claim. But the forms are not interchangeable: the Commission cannot convert an unfair dismissal application into a general protections one, or the other way round.
| Unfair dismissal | General protections | |
|---|---|---|
| The question | Was it harsh, unjust or unreasonable? | Was it for a prohibited reason? |
| Minimum service | 6 months (12 with a small business) | None |
| Income threshold | Applies unless award or agreement covered | None |
| Who proves why | You | Your employer |
| Compensation | Capped; no hurt and distress | No cap; hurt and distress available |
| Penalties | No | Yes, including against individuals involved |
| Who decides | The Commission | A court (or the Commission, if both agree) |
Broadly: if you can point to a protected reason — a complaint, a leave request, a safety issue, your union role, something personal about you — general protections is usually the stronger claim. If the reason was not unlawful but the reason was weak or the process was unfair, unfair dismissal fits better, and it is quicker and cheaper to run. General protections ends in court if it does not settle, which takes more time and evidence. In both jurisdictions each side usually pays its own legal costs (s 570 in court).
What a court can order
- Compensation with no cap, for loss caused by the contravention. It is not confined to lost wages: it can include hurt, distress and humiliation, and damage to your reputation and future job prospects, though amounts for distress are kept within reasonable limits. You still have to prove your loss, and what you earn in a new job, and your efforts to find one, can be taken into account.
- Reinstatement — your job back — and orders to stop or undo the conduct, including urgent injunctions.
- Civil penalties against the employer, aimed at deterrence. They are separate from, and in addition to, compensation.
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Managers can be personally liable
Under s 550, anyone involved in a contravention — who aided it, induced it, or was knowingly concerned in it — is treated as having contravened it themselves. That can include the manager who made the call, an HR officer, or a director. The reverse onus does not usually help here: you must prove that the individual actually knew the essential facts that made the conduct unlawful.
Coercion and sham contracting
Part 3-1 reaches beyond adverse action. Two protections come up often enough to know about.
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Coercion (s 343). No one may organise, take or threaten action with intent to coerce you to use, not use, or use in a particular way, a workplace right. Two things must be shown: an intent to leave you no real choice, and pressure that is unlawful, illegitimate or unconscionable. Ordinary persuasion is not enough. A related rule (s 344) stops an employer putting undue influence or pressure on you to agree to certain things, such as a flexibility arrangement or a deduction from pay. Knowingly or recklessly misrepresenting your workplace rights to you is also prohibited (s 345).
Sham contracting (ss 357–359). An employer must not tell you that you are an independent contractor when you are really an employee, must not dismiss or threaten to dismiss you in order to re-engage you as a contractor doing the same work, and must not knowingly mislead you to get you to sign up as a contractor. Since 27 February 2024, an employer defending a misrepresentation claim has to prove it reasonably believed the arrangement was a genuine contract for services, judged partly by the size and nature of its business. Whether you are an employee is itself decided on the real substance of the relationship, not just the label in the contract (s 15AA).
If you work in Western Australia
If your employer is a company (a Pty Ltd trading business), you are almost certainly in the national system and everything on this page applies. But the general protections depend on the employer being a corporation or another entity the Commonwealth can regulate, so they are generally not available against a WA sole trader, partnership or other unincorporated employer, or against the WA State public sector. Whether they reach a WA local government that is itself a trading corporation is unresolved.
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State-system employees have different protections: damaging action under the Industrial Relations Act 1979 (WA) for employment complaints and inquiries, and the Equal Opportunity Act for discrimination. The federal unlawful termination claim (s 772) also still reaches them if they were dismissed for a prohibited reason such as union activity, a temporary illness or a protected attribute — on a 21-day clock. See damaging action in the WA state system.
