Filing an adverse action (general protections) claim
The general protections provisions in Part 3-1 of the Fair Work Act prohibit an employer from taking adverse action against an employee because of a workplace right, industrial activity, or protected attribute (such as race, sex, disability, or age). Adverse action includes dismissal, demotion, disciplinary action, and altering the employee's position to their detriment. The reverse onus of proof in s 361 means the employer must prove the action was not taken for a prohibited reason.
This is an 8-step workflow for filing a general protections (adverse action) claim under Part 3-1 of the Fair Work Act 2009 (Cth). It covers identifying the prohibited reason, meeting the 21-day filing deadline, and navigating FWC conciliation before court proceedings.
Before you start
- Evidence that the employer took adverse action (dismissal, demotion, warning, or detrimental change)
- A protected reason: exercise of a workplace right, industrial activity, or protected attribute
- For dismissal claims, the application must be filed within 21 days of the dismissal taking effect
- The employee's employment contract, relevant correspondence, and any performance or disciplinary records
The workflow
Identify the adverse action and prohibited reason
Map the employer's conduct to a specific type of adverse action under s 342 (dismissal, injury, alteration of position, discrimination) and the prohibited reason under ss 340-351 (workplace right, industrial activity, or protected attribute). The claim must connect the action to a specific prohibited reason.
Confirm the reverse onus applies
Under s 361, if the applicant alleges adverse action for a prohibited reason, the respondent bears the onus of proving the action was not taken for that reason. Ensure the claim is framed to engage this reverse onus — the applicant must still establish the adverse action occurred.
Gather evidence of the prohibited reason
Collect evidence showing a temporal connection or causal link between the exercise of the workplace right (or other protected matter) and the adverse action. Include emails, meeting notes, performance reviews before and after the protected conduct, and witness statements.
File the FWC application within 21 days
For dismissal claims, complete and file a Form F8 General Protections Application (Involving Dismissal) with the Fair Work Commission within 21 days of the dismissal taking effect. For non-dismissal claims, the application can be filed directly in the Federal Court or Federal Circuit Court.
Prepare for FWC conciliation
The FWC will schedule a conciliation conference. Prepare a conciliation brief including a summary of the claim, key evidence, the remedy sought (reinstatement, compensation, or both), and a realistic settlement range. Most general protections claims resolve at conciliation.
Attend FWC conciliation
Attend the conciliation conference with the client. Be prepared to present the case succinctly and negotiate a resolution. If the matter does not resolve, the FWC will issue a certificate under s 369 allowing the applicant to commence court proceedings.
Assess court proceedings if conciliation fails
If conciliation is unsuccessful, assess whether to commence proceedings in the Federal Circuit and Family Court or the Federal Court within 14 days of the s 369 certificate. Consider the costs, prospects of success, and available remedies (compensation is uncapped for general protections claims).
File court proceedings and prepare the case
If proceeding, file an originating application and statement of claim in the appropriate court. Prepare evidence, witness statements, and submissions. The employer will need to establish its reasons for the action were not prohibited reasons — use the reverse onus in your case strategy.
What you will have at the end
A negotiated settlement at conciliation (most common outcome), or a court order for reinstatement, compensation (uncapped), penalty orders against the employer, or injunctive relief.
Common issues
- Missing the strict 21-day filing deadline for dismissal-related claims
- Failing to identify a specific workplace right or protected attribute as the prohibited reason
- Confusing general protections claims with unfair dismissal — they have different jurisdictional requirements and remedies
- Not preparing a realistic settlement range before conciliation
- Overlooking non-dismissal adverse action such as demotion, roster changes, or disciplinary warnings
Run this workflow on a real matter
Quillio helps you identify the specific adverse action and prohibited reason, draft the FWC application, and prepare conciliation briefs. It surfaces relevant case law on the reverse onus and available remedies. See /practice-areas/employment-lawyers or start a free trial.
This workflow is a general guide. General protections claims are fact-intensive and the interaction between workplace rights, industrial activity, and protected attributes can be complex. Tailor the claim to the specific facts.
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