Many employers are aware of the unfair dismissal regime, but the general protections provisions of the Fair Work Act are less well known, and they come with bigger risks and potential penalties. If you’re an employer, at some point you will need to make employee management, performance or operational changes – so understanding this area of the Act and what it means is critical to avoiding claims.

The general protections provisions are designed to protect employees from adverse action for unlawful reasons — and they come with bigger risks and penalties than unfair dismissal provisions. Unfortunately, many employers often don’t realise how they work and what they mean until it’s too late.

Here’s what you need to know — and how to avoid landing in hot water unintentionally.

What are “general protections” under the Fair Work Act?

The general protections framework is built to stop employers from taking adverse action against someone because they’ve exercised a workplace right, or because of a protected attribute (such as race, age, pregnancy, or union involvement).

This includes situations where someone is:

  • Terminated (including in a redundancy or restructuring context),

  • Demoted or removed from duties,

  • Not hired or offered different terms from others,

  • Treated less favourably because they’ve raised a concern, taken leave, or asked to work flexibly.

Unlike unfair dismissal claims which have a minimum employment period (ie, an employee can’t a claim unless they’ve been employed for 6+ months, or 12 months for small businesses), general protections claims can be brought at any time. Including before employment has commenced.

Critically, in a general protections claim, the employer bears the onus of proving that they didn’t act for an unlawful reason. Ie, the assumption is that the action they took was for a unlawful – and this will be the case, even if there were multiple reasons for taking the action, and only one was prohibited.

For example, an employee was on a performance improvement plan, wasn’t meeting targets or expectations, and then informed the employer of a pregnancy. If the pregnancy was even part of the reason for terminating the employee – and it wasn’t solely because of the performance issues – the employee could be successful in a general protections claim.

Two types of general protections claims employers should be aware of

  1. General protections dismissal claims – the most common form
    These arise when an employee is terminated for a prohibited reason (or for a number of reasons which include a prohibited reason). Eg, because they have made a flexible work request, made a bullying complaint, because they are pregnant, or because of a disability or illness.

    Employers need to be extremely clear on the real reason for dismissal, and have evidence to support that. The best way to do this is with a clear, transparent process. An employe who understands why an employer taking the steps they’re taking is far less likely to bring a claim, than one who suspects that they’ve been targeted and treated unfairly.

  2. General protections non-dismissal claims
    These arise when an employee (or even a prospective one) alleges they’ve been disadvantaged — not necessarily dismissed — for exercising a right. For example, where an employee has been demoted, or had work taken away from them, for a prohibited reason.

    Another example may be where a prospective employee is not hired because of a prohibited reason or attribute. For example, where a business elects not to offer employment to a prospective employee because they are pregnant, or because they have a disability.

Why General Protections Matter for Small Business Employers

Most small and mid-sized businesses don’t have the luxury of an in-house legal team, but they still have to navigate the same legal landscape as any large employer. And with the bar for claims being relatively low (and the burden of proof sitting with the employer), it’s surprisingly easy to end up dealing with a Fair Work claim even if your intentions were fair and and reasonable.

We see it all the time – an employee is terminated for performance related reasons, but the process is bungled and the employee believes (whether genuinely or not) that the real reason for their termination is because they made a complaint about their manager a few months ago. Or, an employee has been on a performance improvement plan (PIP) for some time, and then announces their pregnancy.

Time limits and process (what to expect)

If a general protections claim involves a dismissal, the employee has just 21 days to file it. If it’s a non-dismissal claim, they have up to six years.

Once lodged, the Fair Work Commission typically facilitates a conciliation conference. If the issue isn’t resolved there, it may escalate to court proceedings — which are public, costly, and time-consuming.

Even if you resolve things early, the stress and resource drain on a growing business can be significant.

The smarter approach? Get advice before you act

We regularly help employers to carefully and sensitively:

  • Design performance and restructure processes that are clear, fair, and set you up to respond well to any claims that may be brought,

  • Navigate flexible work requests or grievances with clarity,

  • Work through complex performance management situations, where multiple issues are at play

  • Prepare documentation and communications.

If you’re unsure — let’s talk

If you’re navigating a tricky staffing situation or want to make sure that your current approach or plan is not going to land you in hot water, we can help.

Book a consult todayBook a call, or read more on the Fair Work Commission website!