General protections
General protections claims don’t ask whether a dismissal was fair. They ask whether it was tainted by a prohibited reason — and once the employee shows enough, the employer has to prove it wasn’t.
What you’ll be able to do
- Identify the four general protections doors that most often open onto a dismissal: workplace rights, industrial activity, discrimination, and the reverse onus that sits over all of them.
- Explain why the reverse onus in s.361 makes a general protections risk assessment completely different from an unfair dismissal one.
- Spot the fact patterns — evidence from the real decision-maker, or the absence of it — that decide these cases in practice.
Four doors into Part 3-1
General protections dismissal disputes usually turn on one or more of the following. Each is a separate legal question, but they share the same structure: a protected thing the employee did or has, and an adverse action taken because of it.
Workplace rights (s.340). A person must not take adverse action against another person because the other person has, has exercised, or proposes to exercise a workplace right [2026] FWC 1138 at [22]. A workplace right includes being able to make a complaint or inquiry in relation to one’s employment [2024] FWC 840 at [21] — and whether a communication counts as a complaint is a matter of substance, not form; the employee doesn’t need to use any particular words [2024] FWC 840 at [23].
Industrial activity (s.346). An employer must not take adverse action against a person because the person is or is not a member of an industrial association, or engages or proposes to engage in industrial activity within the meaning of s.347 — which includes seeking, or not seeking, union representation [2023] FWC 806 at [96]. The protection runs both ways: it protects employees who join in industrial action and employees who refuse to.
Discrimination (s.351). An employer must not take adverse action against an employee because of a protected attribute — race, sex, age, disability, religion, political opinion and the rest of the list in s.351(1) [2024] FWC 2822 at [83]. This ground is narrower than it looks: s.351(2)-(3) ties it to the general anti-discrimination regimes, so conduct that wouldn’t contravene state, territory or federal anti-discrimination law generally won’t contravene s.351 either [2024] FWC 2822 at [84].
The adverse action itself (s.342). Dismissal is always adverse action, but so is injuring the employee in their employment or altering their position to their prejudice [2024] FWC 2475 at [39].
The reverse onus: why this changes everything
In an unfair dismissal case, the employee has to prove the dismissal was harsh, unjust or unreasonable. In a general protections case, s.361 flips that. Once the employee establishes the protected right, activity or attribute, and that adverse action was taken, it is presumed the action was taken for that reason — unless the employer proves otherwise [2024] FWC 2475 at [41].
This isn’t a minor procedural quirk. Section 361 creates a statutory presumption that operates whenever it’s alleged a person contravened s.340 or a cognate provision like s.346 — a distillation by Wigney J of the High Court’s reasoning in Barclay and BHP Coal [2024] FWC 2475 at [42]. Barclay and BHP Coal are High Court authorities and are not independently located in this corpus — see the note under Decisions cited.
But the onus doesn’t shift for free. The employee still has to establish the protected right, activity or attribute, and the adverse action, as objective facts before s.361 does any work for them [2021] FWC 3264 at [17]. An applicant who files no evidence at all gets nothing from s.361 — in one matter, an applicant was given repeated extensions and warnings but never filed any material, and the Commission held there was no evidence she had exercised a workplace right at all, so it was unnecessary for the employer to even attempt to discharge the reverse onus [2026] FWC 1138 at [27]. The presumption answers “why,” not “whether.”
The reverse onus also has a boundary. It applies to the reason for an adverse action, not to the jurisdictional question of whether a dismissal happened at all. A casual employee who wasn’t offered further shifts still had to prove, on the ordinary onus, that he was “dismissed” within the meaning of s.386 before s.361 could ever come into play on the reason for it [2026] FWC 1685 at [45].
What actually wins and loses these cases
Once the onus is engaged, the question becomes evidentiary: can the employer show, through the actual decision-maker, what the real reason was? Two decisions on almost identical facts — an employee who asked about unpaid entitlements, then lost their job — show both ends of this.
In one, the decision-maker herself gave evidence under cross-examination that was “consistent and withstood scrutiny,” and the Commission accepted the real reason was the business’s financial position, not the entitlement inquiry; the respondent discharged the onus [2024] FWC 840 at [33]. In another, two decision-makers gave specific, detailed, first-hand evidence about the actual events that led to dismissal — so specific that the suggestion their decision was really about the employee’s disability was found to lack “any basis” [2024] FWC 2475 at [47], and the respondent comprehensively discharged the burden [2024] FWC 2475 at [43].
The lesson for advisers: the person who actually made the decision has to be able to give evidence, with specifics, of their own reasons. An HR summary, a board paper, or a colleague’s recollection of what someone else decided is not a substitute.
How these claims fail
The decision-maker never turned up
An employee who complained about a co-worker and disclosed a pre-existing medical condition was told his role was “redundant.” The actual decision-maker gave no witness statement and didn’t attend the hearing; the person who did attend gave only unsupported verbal submissions. [2025] FWC 777 at [26]
If the decision-maker won’t or can’t give evidence, the reverse onus is very hard to discharge.
The presumption isn’t a substitute for evidence
An applicant alleged dismissal for exercising a workplace right but, despite repeated directions, warnings and an extension of time, filed no evidence at all. [2026] FWC 1138 at [28]
The reverse onus rewards an employee who proves their case. It does nothing for one who doesn’t try.
Specificity beat suspicion
A dismissal followed closely on an employee’s disclosure of autism and a run of client complaints. The employer’s two decision-makers gave granular, consistent evidence of each incident relied on. [2024] FWC 2475 at [47]
A tight timeline against the employee is survivable — but only with contemporaneous, specific, first-hand evidence.
The onus answers the wrong question
A casual worker argued the reverse onus helped prove he’d been dismissed after being told there was “no work.” The Commission held the reverse onus only bears on why adverse action was taken — not on whether a dismissal occurred at all. [2026] FWC 1685 at [45]
Check the jurisdictional facts first. The reverse onus never gets there if there’s no dismissal to begin with.
Adviser checklist
- Identify the right
- Timing
- The decision-maker
- Evidence
- Risk assessment
- Before deciding
Practice scenario: the Riverside Distribution redundancy
Fictional scenario. Write your answers, then reveal the model answer.
Riverside Distribution is a fictional mid-size logistics company running a regional warehouse. Priya has worked there for three years as a picker/packer. Four weeks ago she raised a written safety complaint about a forklift near-miss in her aisle, copying the warehouse manager and the WHS representative. Two weeks ago, in a one-on-one meeting, she mentioned to her team leader that she had recently been diagnosed with generalised anxiety disorder and asked for a quieter workstation away from the loading dock.
This week, HR sent Priya a letter saying her position has been made redundant “as part of a broader restructure of the warehouse floor.” No other picker/packer role was removed. The Operations Director, who made the call, is not named in the letter and has not spoken to Priya directly. HR’s file contains only a one-line email from the Operations Director: “action the Riverside headcount review for Priya’s role — budget pressure.”
- Not yet, on what we can see — but it’s close. Priya would need to establish, as objective facts, that she exercised a workplace right (the safety complaint, and arguably the accommodation request) and that adverse action was taken. On these facts that looks straightforward: a complaint and a disclosure, followed by a termination, with only one role cut. Once she does that, s.361 presumes the redundancy was for those reasons unless Riverside proves otherwise.
- Missing: any evidence from the actual decision-maker (the Operations Director) beyond a one-line email; any contemporaneous business case for the “headcount review” predating Priya’s complaint and disclosure; any explanation of why her role specifically, rather than another picker/packer role, was selected; and any record of how the restructure criteria were applied.
- Before finalising anything: get a signed, detailed statement from the Operations Director setting out exactly when the restructure decision was made, on what financial or operational basis, and how role selection was decided — ideally with documents (budgets, org charts, a business case) that predate the safety complaint. If that evidence doesn’t exist or can’t be produced, escalate before the letter goes out: on the two confirmed decisions in this area, a thin, after-the-fact explanation from someone other than the real decision-maker is the single biggest reason employers lose these cases.
Where it could land, depending on what the further inquiries show:
Decisions cited
Check each paragraph reference against the published decision before relying on it. Barclay, BHP Coal, De Martin & Gasparini (No 2), Tattsbet v Morrow, Keep v Performance Automobiles, Shea v TRUenergy and Jones v Dunkel are cited as quoted or distilled in later decisions and still need checking against the original. The row for MUA v DP World Brisbane records a correct statement of s.346/s.347 made in a party’s submission, not a Commission finding, and its own outcome on the enterprise agreement clause in dispute is not addressed. Rows marked “partial” confirm the proposition pinpoint only — the decision’s own final finding on the substantive claim was not independently read in this pass.
| Decision | Outcome (confirmed from the text) |
|---|---|
| [2026] FWC 1685 Hibbet v Cowra Meat Processors Pty Ltd | Application dismissed for want of jurisdiction — confirmed at [49]: the applicant, a casual employee not offered further shifts, was found not to have been "dismissed" within the meaning of s.386(1)(a) at all. The Commission expressly distinguished the s.361 reverse onus (which would apply to the reason for an adverse action) from the separate, un-reversed onus on the applicant to first prove the jurisdictional fact of dismissal — confirmed at [45]. The merits of the applicant's workplace-right allegation (an overtime complaint) were not reached. [49] |
| [2026] FWC 1138 Loy v Indigo Lawyers Pty Ltd | Application dismissed — confirmed at [29]-[30]. The applicant alleged dismissal for exercising a workplace right but, after being granted an extension of time, failed to file any evidence or submissions despite repeated directions and warnings. The Commission held that because there was no evidence she exercised a workplace right, it was unnecessary for the respondent to discharge the s.361 reverse onus at all — confirmed at [26]-[28]. Clean illustration that the presumption only engages once the applicant proves the underlying facts. [30] |
| [2025] FWC 777 Gray v Rim Fire Asia Pacific Pty Ltd | The Commission found the adverse action (dismissal) was taken for protected reasons — confirmed at [31]: the applicant's workplace complaint about a co-worker (s.341(1)(c)(ii)) and his disclosure of a pre-existing medical condition (s.351). The respondent's actual decision-maker did not give evidence or a witness statement; the witness who did appear gave only unsupported verbal submissions about a redundancy rationale, which the Commission found did not discharge the s.361 reverse onus — confirmed at [26]-[30]. Remedy was left to a further directions process, confirmed at [32] — the remedy itself was not read in this pass. [31] |
| [2024] FWC 840 Yoon v Go Travelling Pty Ltd | Application dismissed — confirmed at [33]. The applicant exercised a workplace right under s.341(1)(c) by inquiring about study-leave pay entitlements; dismissal was adverse action (not disputed, [26]). The decision-maker (Ms Tong) gave evidence, accepted as consistent and credible, that the real reason was the respondent's financial position, discharging the s.361 reverse onus — confirmed at [29]-[30], [33]. [33] |
| [2024] FWC 2822 Olsen v Lynas Services Pty Ltd | partialThis decision resolves only an extension-of-time application under s.366(2); the Commission found exceptional circumstances and extended time to 4 August 2024, confirmed at [93]-[94]. The s.351(1) test (adverse action because of a protected attribute, here political opinion) and the s.351(2)-(3) anti-discrimination-law carve-out, read at [83]-[84], were considered only as part of the preliminary "merits" factor in the extension-of-time test. The substantive general protections discrimination claim itself was not decided in this decision and was not read in this pass. [93] |
| [2024] FWC 2475 Hastings v Platform To Pty Ltd | Application dismissed — confirmed at [50]. The applicant alleged dismissal because she exercised a workplace right (s.340) and because of her disability, Autism Spectrum Disorder (s.351). Adverse action (dismissal) was not disputed at [40]. The two decision-makers gave specific, consistent, first-hand evidence of the actual operational and conduct-based reasons for the dismissal, which the Commission accepted discharged the s.361 reverse onus — confirmed at [43], [47]-[49]. [50] |
| [2023] FWC 806 Maritime Union of Australia v DP World Brisbane Pty Ltd | This is an enterprise-agreement dispute-resolution decision about the construction of a right-of-representation clause, not a general protections adverse-action case. Cited here only for the accurate paraphrase of s.346 and s.347(a)/(b) recorded as part of the employer's submission at [96] (itself unchallenged as a statement of the general protections scheme) — not relied on for, and not asserting anything about, this decision's own ruling on the enterprise agreement clause. [96] |
| [2021] FWC 3264 Baxter v Surfside Buslines Pty Ltd | General protections dismissal application dismissed — the Commission concluded at [158] that the dismissal did not contravene the general protections provisions. Cited mainly for its recitation at [15] of the Keep v Performance Automobiles s.340 test (workplace right / adverse action / because of a prohibited reason, and the substantial-and-operative-factor test) and at [17] of the Tattsbet v Morrow objective-fact requirement before the s.361 onus engages. [158] |
- Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 — quoted in [2024] FWC 2475 at [42]. Check against the original before relying on it.
- Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 — quoted in [2024] FWC 2475 at [42]. Check against the original before relying on it.
- Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 — quoted in [2024] FWC 2475 at [42]. Check against the original before relying on it.
- Tattsbet Limited v Morrow — quoted in [2021] FWC 3264 at [17]. Check against the original before relying on it.
- Keep v Performance Automobiles Pty Ltd — quoted in [2021] FWC 3264 at [15]. Check against the original before relying on it.
- Shea v TRUenergy Services Pty Ltd (No 6) — quoted in [2024] FWC 840 at [23]. Check against the original before relying on it.
- Jones v Dunkel (1959) 101 CLR 290 — quoted in [2025] FWC 777 at [21]. Check against the original before relying on it.