General Protections Claims: When Dismissal Is Unlawful
Updated 22 September 2026 · General information, not legal advice
A general protections dismissal claim must be lodged with the Fair Work Commission within 21 days after the dismissal takes effect, under section 366 of the Fair Work Act 2009 (Cth), if the employee was dismissed for a prohibited reason. Prohibited reasons include discrimination, exercising a workplace right, such as taking leave or making a complaint, and a temporary absence because of illness or injury. The protections are set out in Part 3-1 of the Act.
The first step is to identify the prohibited reason. The application must name the protection that was breached, so an employee who does not know why they were dismissed usually considers unfair dismissal instead. Then lodge Form F8 and pay the $92.70 application fee (as at September 2026), which can be waived for serious financial hardship. The claim can end in the Federal Court, so many people compare Employment Lawyers in Australia before lodging.
What is a general protections claim?
A general protections claim alleges that a person took adverse action against someone for a prohibited reason. Adverse action is defined in section 342 of the Fair Work Act. For an employee, it includes:
- Dismissal.
- Demotion or a change to the job that disadvantages the employee, such as cutting shifts or hours.
- Treating the employee differently from others.
- Refusing to hire a prospective employee.
- Threatening any of these actions.
Action taken for a legitimate reason is not adverse action. Genuine redundancy, a lawful stand down and reasonable management action on performance are examples the Fair Work Commission gives.
What are the prohibited reasons?
The prohibited reasons are set out in sections 340 to 358 of the Fair Work Act. The main ones are:
- Workplace rights (s 340). Having or using a workplace right, such as taking leave, asking about pay or making a complaint about employment.
- Industrial activities (s 346). Joining or not joining a union, taking part in lawful industrial action or acting as a workplace delegate.
- Discrimination (s 351). Race, sex, age, disability, pregnancy, religion, family or carer's responsibilities and other protected attributes.
- Temporary absence (s 352). Being away from work because of illness or injury.
- Sham arrangements (s 358). Dismissing an employee to re-engage them as an independent contractor.
Who can make a general protections claim?
An employee can make a general protections dismissal application if they:
- were an employee, not a contractor, prospective employee or volunteer;
- are covered by the national workplace relations system;
- were dismissed, including being forced to resign by the employer's conduct; and
- believe the dismissal was for a prohibited reason.
There is no minimum employment period and no high income threshold. That is the main practical difference from unfair dismissal.
What is the reverse onus under section 361?
Section 361 of the Fair Work Act presumes that the action was taken for the alleged prohibited reason unless the employer proves otherwise. The employee must still establish the adverse action and the workplace right or attribute. The employer must then prove, on the balance of probabilities, that the prohibited reason was not a reason for its decision.
Section 360 adds that an action is taken for a reason if the reasons include that reason. An employer who dismissed someone partly for poor performance and partly because they made a complaint has not discharged the onus. In practice, the evidence of the person who made the decision is central.
How long do you have to make a general protections claim?
A general protections dismissal claim has a 21-day time limit from the date the dismissal takes effect. The Commission describes this as a strict limit. An extension is possible only in exceptional circumstances, and the Commission states that about 80% of extension requests are denied.
| Claim type | Where it starts | Time limit |
|---|---|---|
| Dismissal (s 365) | Fair Work Commission, Form F8 | 21 days after the dismissal takes effect |
| Court application after a certificate (s 370) | Federal Court or Federal Circuit and Family Court (Division 2) | 14 days after the certificate is issued |
| Non-dismissal (s 372) | Fair Work Commission or directly to court | Up to 6 years after the adverse action (s 544) |
How does a general protections claim work?
A general protections dismissal claim follows 4 stages:
- Firstly, apply. The employee lodges Form F8 within 21 days. The Commission sends it to the employer, which has 7 days to respond on Form F8A.
- Secondly, dispute resolution. A Commission Member or staff member helps the parties try to settle. Outcomes can include compensation, reinstatement, an apology, a statement of service and confidentiality terms.
- Thirdly, a certificate. If the dispute does not settle, the Commission issues a certificate. If the Member thinks the claim is unlikely to succeed in court, the certificate must say so.
- Finally, court or arbitration. Within 14 days of the certificate, the employee can apply to the Federal Court or the Fair Work division of the Federal Circuit and Family Court of Australia. Alternatively, both parties can jointly ask the Commission to arbitrate, which is rare.
In court, the orders available under section 545 include compensation and reinstatement, and section 546 allows pecuniary penalties against the employer. There is no statutory cap on compensation. Under section 570, each party generally bears its own court costs unless proceedings were brought vexatiously or without reasonable cause, or a party acted unreasonably.
Can you make a general protections claim and an unfair dismissal claim?
No. An employee can make only one type of application about the same dismissal. Sections 725 to 732 of the Fair Work Act prevent a general protections claim if an unfair dismissal application or a claim under anti-discrimination law has already been made about that dismissal, and the reverse also applies.
| Feature | General protections (dismissal) | Unfair dismissal |
|---|---|---|
| Question | Was the dismissal for a prohibited reason? | Was the dismissal harsh, unjust or unreasonable? |
| Onus | Employer must disprove the reason (s 361) | Employee must show unfairness |
| Minimum service | None | 6 months (12 months small business) |
| Income threshold | None | $190,100 unless award or agreement covered |
| Time limit | 21 days | 21 days |
| Final decision-maker | Federal court (or Commission arbitration by consent) | Fair Work Commission |
| Compensation cap | None | Lower of 26 weeks' pay or $95,050 |
Choosing the wrong path cannot usually be undone. The guide to Unfair Dismissal in Australia sets out the eligibility tests for the alternative.
What should an employer do when served with a claim?
An employer served with a general protections claim must respond within 7 days of receiving it, using Form F8A for a dismissal claim or Form F8D for a non-dismissal claim. The Commission warns that an employer that does not respond or take part loses the chance to resolve the matter before it goes to court.
Because of the reverse onus, employers usually prepare:
- A statement from the person who made the decision, explaining every reason for it.
- Records made at the time, such as meeting notes, performance reviews and emails.
- Evidence of when the decision-maker learned of the complaint, leave or attribute.
- Any objection, such as a late application or a prior claim about the same dismissal.
Is there a free way to test the claim first?
Yes. The Commission's online eligibility tool asks how the employment ended, why the employee believes they were dismissed and when the dismissal took effect, and it directs the employee to the right form. Community legal centres and some legal aid commissions also give free employment law advice.
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View firm profileFinding an employment lawyer for a general protections claim
A general protections claim can move from the Commission to a federal court in a matter of weeks, so compare lawyers before the 21 days end. The Employment Lawyers in Australia rankings compare firms by city, including Employment Lawyers in Sydney, Employment Lawyers in Melbourne, Employment Lawyers in Brisbane and Employment Lawyers in Perth. Some firms run employee claims on conditional terms; see No Win No Fee Lawyers in Australia.
Frequently asked questions
Is a general protections claim the same as an adverse action claim?
Yes. "Adverse action" is the harmful conduct, such as dismissal or demotion, and a general protections claim alleges that the adverse action was taken for a reason prohibited by Part 3-1 of the Fair Work Act 2009 (Cth).
Can a contractor make a general protections claim?
Independent contractors are protected from adverse action under Part 3-1, but a general protections dismissal application can only be made by an employee. A contractor's claim follows the non-dismissal pathway.
Does the Fair Work Commission decide general protections claims?
No. The Commission's role is limited to dispute resolution. If the dispute does not settle, a federal court decides the claim, unless both parties agree to arbitration by the Commission.
What if the employer says it dismissed me for poor performance?
Underperformance and misconduct are not prohibited reasons. Under section 361, though, the employer must prove that the prohibited reason was not a reason for the dismissal, and under section 360 a reason counts if it was one of several.
Can I claim general protections if I have less than 6 months' service?
Yes. There is no minimum employment period and no high income threshold for general protections claims, unlike unfair dismissal.