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Dismissal in breach of general protections

Information about other protection for employees against unlawful or discriminatory treatment at work.

What are general protections?

The Fair Work Act 2009 (Cth) sets out some general rights that an employee is entitled to expect in their workplace. An employer is prohibited from taking an adverse action against an employee for exercising these rights under workplace laws. These rights include freedoms to:

  • work without discrimination or harassment
  • take time off work when they are sick or injured
  • negotiate a workplace agreement without coercion
  • participate in (or to choose not to participate in) industrial activity (bans, strikes)
  • make a complaint or ask for an investigation into a potential breach of workplace safety or other employer obligation (like checking to see if they are being paid correctly, or asking for a safety check of their workplace).

An employee can make a claim even if only part of the reason for terminating employment is due to a breach of these general protections. For example, if a company wants to reduce staff numbers it must not select employees who have been involved in industrial activities.

Note: There does not have to be a termination of employment for an employee to complain about a breach of these general protections.

Where to get help

If an employee believes that these fundamental workplace rights have been breached by an employer they can seek help from the Fair Work Commission.

See 'How to apply' and Fair Work Commission for detailed information about General protections (links below)

Who is covered by these general protections?

The protection is broader than the unfair dismissal protections. It may apply to:

  • employees who are not national system employees
  • high income earners
  • a prospective employee
  • a contractor against a principal contractor (or an employee of that contractor)
  • a union against a person
  • employers (for example where an employee take unprotected industrial action).

What is an adverse action?

An adverse action is defined to include:

  • dismissal
  • injuring an employee
  • treat the employee less favourably than others (discrimination)
  • change the position of the employee in a way that disadvantages them.

Whether the conduct amounts to an unfair action will depend on the relationship between the parties.

See s. 342—Fair Work Act 2009 (Cth)(opens in a new window)

Time limit

An employee must apply to Fair Work Commission within 21 days of any dismissal or other breach of the general protections.

Industrial action

An employee is free to choose whether or not to join a union. They may also participate in any lawful industrial activity or choose not to be involved.

See 'Unions and industrial action' (link below)

Dismissal of a sick or injured person

An employee must not dismiss an employee who is temporarily absent from work because they are injured or sick.

The time limit for lodging a complaint with Fair Work Commission about this dismissal is 21 days.

How to apply

The Fair Work Commission will try to help sort out a dispute between the employee and employer. Use Form 8 to apply for any disputes about breaches of an employee's general protections.

See 'Fair Work Commission—General protections' (link below)

More information

Legislation

Fair Work Act 2009 (Cth)

  • Part 3-1—General protections
  • s. 347—defines industrial action
  • s. 341—inclusive definition of a workplace right
  • s. 342—defines an adverse action by an employer
  • s. 366—time limit of 21 days from the time of a breach of general protections
  • s. 394—time limits and extensions of time under exceptional circumstances
  • s. 352—dismissal of a person because of temporary illness or injury is prohibited
  • s. 365—application to the Fair Work Commission

See Fair Work Act 2009 (Cth)(opens in a new window)

The Law Handbook (Fitzroy Legal Service)

See General protections(opens in a new window)

Fair Work Commission

This page explains what is covered under general protections and links to a Form F8 application form.

See:

Job Watch

This sheet explains the differences between unfair dismissal and general protection dismissal.

See 'General protections dispute - termination claim' infosheet at JobWatch—Publications(opens in a new window)

Updated