What is a general protections claim?
An unfair dismissal claim asks whether the dismissal was harsh, unjust or unreasonable. A general protections claim asks something different: why did the employer do it?
The structure of the claim
An employer must not take adverse action against you because of a protected reason.
Adverse action includes dismissing you, injuring you in your employment, altering your position to your prejudice, or discriminating between you and other employees. It is not limited to dismissal.
Protected reasons include:
- Exercising a workplace right. Making a complaint or inquiry about your employment. Taking personal leave. Asking to be paid correctly. Raising a safety concern. Making a bullying complaint. Asserting an entitlement under an award, agreement or the Act.
- Having a workplace right, whether or not you exercised it.
- Industrial activities, including union membership or non-membership.
- A protected attribute: race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction, social origin, and others.
- Temporary absence due to illness or injury.
The reverse onus
This is what makes general protections powerful. If you establish that adverse action was taken and allege it was for a protected reason, the employer bears the onus of proving it was not for that reason.
The employer must prove a negative about its own state of mind. That is a real burden, and it is why these claims settle.
No compensation cap
Unlike unfair dismissal, there is no statutory cap on compensation in a general protections matter, and compensation for hurt and distress is available. Civil penalties can also be imposed on the employer.
This does not mean the payouts are large. The Commission's data on general protections dismissal matters resolved in 2024-25 shows that of those with a monetary settlement, about a third were under $4,000, around 61% were under $10,000, and the median fell in the $4,000 to $5,999 range.
We would rather you read that here than discover it at conciliation.
The 21 day deadline
What happens if it does not settle
This is the part you need to understand before you engage anyone.
A representative, whether it is us acting for you, or a paid agent or lawyer acting for the other side, needs the Commission's permission under s.596(2) to participate in a general protections conference, and permission is not automatic. The Commission may refuse representation for one side or both sides.
A general protections dismissal application goes to a conference at the Commission. If it does not resolve, the Commission issues a certificate, and your only remaining path is to commence proceedings in the Federal Circuit and Family Court of Australia.
In 2024-25, around a third of these matters did not settle and ended with a certificate. While we cannot represent you in court we will talk to you about your options going forward.