Hit With a General Protections Claim? An Employer’s Defence Guide

You have been served with a general protections application at the Fair Work Commission, or you expect one. An employee or former employee says your business took “adverse action” against them because of a workplace right. This is a different claim from unfair dismissal, the stakes are higher, and the burden of proof sits on you. Here is what that means and how an employer prepares a proper response.

General protections is not unfair dismissal

These are two separate claims under the Fair Work Act, and it matters which one you are facing. Unfair dismissal asks whether a dismissal was harsh, unjust or unreasonable, and it carries a cap on compensation. A general protections claim under Part 3-1 asks a different question: why did you take the action? Did you do it because the person had, or used, a workplace right? Because the law is built around that question, it works very differently, in three ways that an employer needs to understand before responding.

The reverse onus: the heart of the case

In most disputes the person bringing the claim has to prove it. General protections reverses that. Under section 361, once the applicant shows they suffered adverse action (for example they were dismissed, injured in their employment, had their position altered to their prejudice, or were discriminated against between employees) and that they had a workplace right, the law presumes you took the action for that prohibited reason. It is then your job to prove, on the balance of probabilities, that you did not.

Section 360 makes this demanding. It says a reason counts if it is among your reasons for the action. So it is not enough to show you also had a good reason. You have to show the prohibited reason played no operative part in the decision. If the exercise of a workplace right was even part of why you acted, the prohibition is engaged. The practical upshot is that you need contemporaneous evidence of the genuine, lawful reason, and the person who actually made the decision has to be able to give a direct, credible account of why they made it.

This is also why fabricating or back-dating a reason is self-defeating. Because you carry the burden, a reason invented after the event tends to collapse under cross-examination, and when it does, the presumption stands and you lose. The lawful, documented reason is the only reason worth running.

The two tracks, the forms, and the clock

The procedure depends entirely on whether the adverse action was a dismissal. Get this straight from your notice first, because the forms and deadlines are different.

• Dismissal dispute. The applicant applies on Form F8 under section 365, and must do so within 21 days after the dismissal took effect (section 366) — the Commission extends that only in exceptional circumstances. You respond on Form F8A, due 7 days after you receive the application, and you must give it to both the Commission and the applicant within that window. An F8 lodged out of time is a clean threshold point, so compare the dismissal-effective date with the lodgment date first.
• Non-dismissal dispute. The applicant applies on Form F8C under section 372, and there is no 21-day limit on this track. You respond on Form F8D. The F8D deadline is set by the Commission rather than fixed at 7 days, so read the date off the notice you received and off the current form rather than assuming a number.

Do not file an F8A for a non-dismissal matter, or an F8D for a dismissal matter. The response form, the deadline and the whole downstream process differ between the two tracks.

The conference, and the choice to defend or settle

For a dismissal dispute, the Commission must deal with the matter first at a private conference (section 368). If it cannot be resolved, the Commission issues a certificate. The Commission can only arbitrate the dispute if both parties agree (section 369); otherwise the applicant can take the matter to the Federal Court or the Federal Circuit and Family Court of Australia, and must do so within 14 days of the certificate (section 370). For a non-dismissal dispute, the Commission deals with it only if the parties agree to participate.

The conference is where many of these matters resolve. Settling is not a defeat. Where the action was not defensible — where the prohibited reason was part of why you acted, or your contemporaneous evidence of a lawful reason is thin — a sensible settlement, usually recorded in a deed of release, limits an exposure that is otherwise uncapped.

Why the exposure is larger than unfair dismissal

This is the part employers most often underestimate. A general protections court application has no compensation cap: under section 545 the court may make any order it considers appropriate, including compensation for the loss suffered. On top of that, civil penalties can apply — up to 60 penalty units per contravention for an individual, and five times that for a body corporate (sections 539 and 546) — and penalties can be ordered in addition to compensation. Each party generally bears its own costs (section 570), but an employer that runs a hopeless or vexatious defence can be ordered to pay the other side’s costs. All of this is why early, genuine engagement, and an honest read of the merits, matter so much.

The full guide walks through the reverse onus in plain terms, the genuine defences and when each actually applies, the exact evidence to assemble (and how to present the decision-maker’s reasoning), the conference and settlement, your full exposure if you lose, and the honesty duty and the Fair Work Commission’s generative-tools guidance that applies to these matters from 20 October 2026.

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This is general information about the law and procedure, not legal advice; Claim Done is not a law firm.

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