If you were sacked, demoted, or treated worse at work because of a personal characteristic rather than your actual conduct or performance, that may be unlawful discrimination under the general protections part of the Fair Work Act.
The law does not turn on whether your employer meant to be unfair, or whether they would ever call it discrimination. It asks a narrower question: was a protected attribute, something about who you are, one of the reasons for what they did to you? If it was, the action can be unlawful even where the employer also had other, lawful-sounding reasons sitting alongside it.
The protected attributes
An employer must not take adverse action against an employee, including dismissing them, because of any of these:
- race
- colour
- sex
- sexual orientation, gender identity, or intersex status
- age
- physical or mental disability
- marital status
- family or carer's responsibilities
- pregnancy or breastfeeding
- religion
- political opinion
- national extraction or social origin
If a reason your employer acted against you was one of these, that is the heart of a discrimination claim under the general protections. It does not have to be the only reason, or even the main one. Under the Fair Work Act it is enough that the protected attribute was one of the reasons for what they did.
What counts as adverse action
It is not only being sacked. Adverse action is broad. It includes dismissing you, but it also covers demoting you, cutting your hours, pay, or conditions, refusing to promote you, changing your duties to your disadvantage, or singling you out for treatment other employees do not get, where a protected attribute was a reason.
Some of the ways this plays out in real workplaces:
- Being performance-managed or eased out soon after you disclose a disability or a health condition.
- Losing shifts, being demoted, or being pushed to resign after you tell your employer you are pregnant, or when you come back from parental leave.
- Being sidelined or let go as you get older, while the reasons you are given do not add up.
- Being refused a reasonable adjustment, then dismissed for not meeting a standard the adjustment would have let you meet.
- Being treated worse because of your race, your religion, or where you were born.
If any of these sits close to what happened to you, it is worth having someone go through the detail with you before you decide what to do.
The powerful part: the reverse onus
Like other general protections claims, discrimination carries a reversed burden of proof, and it matters more than almost anything else in these matters. In most disputes the worker has to prove the case. Here you do not. Once you show that adverse action was taken and point to a protected attribute as a reason, the law presumes your employer acted for that reason. It is then on the employer to prove that the attribute was not a reason they acted.
That is a genuine hurdle. An employer who cannot clearly show, with contemporaneous evidence, the real and lawful reason they acted is in a difficult position, and that is a large part of why these matters resolve rather than run.
Some limits worth knowing
Being straight with you: there are exceptions. It is not unlawful under this section if the action was based on the inherent requirements of the particular job, meaning something the role genuinely cannot be done without. There are also specific carve-outs, for example for some religious institutions acting in line with their beliefs. And there is a separate anti-discrimination pathway through state and federal human rights bodies that can sometimes apply instead of, or alongside, the Fair Work path. Which avenue fits your situation depends on your facts, and it is worth talking through before you commit to one, because choosing the wrong door can cost you time you do not have.
What a claim can be worth
A general protections claim is not measured the same way as an unfair dismissal claim. If a matter proceeds to court, the compensation a court can order is not subject to the fixed cap that applies to unfair dismissal, and a court can also impose penalties on an employer that has broken the law. Most matters never travel that far, precisely because the reverse onus and the prospect of court give an employer a real reason to resolve at the Commission. What is realistic in your case depends entirely on your circumstances, and it is something we will talk through with you plainly, not something anyone should promise you up front.
One important limit
There is a trade-off you need to understand up front.
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.
If a general protections dismissal claim does not resolve at the Fair Work Commission, it proceeds to court. While we cannot represent you in court we will talk to you about your options going forward. If your matter looks like it may end up there, we will tell you honestly.
The 21 day deadline
If the discrimination was your dismissal, you generally have 21 days from when it took effect to lodge with the Fair Work Commission. That window is short and it is strict, and missing it can end a strong claim before it starts. If what happened to you was not a dismissal, a different and usually longer timeframe can apply. Either way, do not wait to find out where you stand, because the clock does not pause while you decide.
Find out if you have a claim
Whether what happened to you counts as unlawful discrimination, and whether general protections is the right avenue, turns on the real reason behind the employer's action. That is worth a proper conversation, not a guess.
We act for employees at the Fair Work Commission and we will give you a straight answer about your options.