Introduction

In the employer’s traditional playbook of managing dismissal risks, where Unfair Dismissal once headlined, a new chapter is being written. It’s titled – “General Protections”.

GP claims are increasing and shows no sign of abating.

In this article, we tackle the uncomfortable truth at the heart of the GP regime. The good news is early and prudent legal advice can assist employers navigate the risks. In our experience, employers who seek advice before making dismissal decisions generally achieve better outcomes.

The Law

Under s341(1) of the Fair Work Act 2009 (Cth) (FW Act) employers must not take adverse action against employees for a prohibited reason. At its crux, the GP regime is generally concerned with why an employer, or more correctly, its decision-maker(s), took adverse action against an employee.

A common trigger for a GP claim is dismissal near the exercise or proposed exercise of a workplace right (s341(1)(c) FW Act). This includes where an employee makes a complaint or inquiry in relation to their employment.

What counts as a complaint or inquiry depends on the circumstances. However, it appears relatively clear that a complaint or inquiry will not constitute an exercise of a workplace right unless the subject of the impugned complaint or inquiry is underpinned by a right or entitlement (PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; cf Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204). A right or entitlement to make a complaint or inquiry can usually be found in (PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15):

• Workplace laws or instruments;

• Employment contracts;

• Legislative provisions which are not workplace laws (provided the complaint is in relation to employment);

• Contractual terms providing a right to make complaints; and

• The general law.

The Real Battleground: Causation

An employee must first establish the objective facts necessary to make out the elements in their GP claim. Those facts are the existence of a workplace right (or a protected attribute) and that the employee was subjected to adverse action.

Once those objective facts are established then it’s game on due to the reverse onus of proof kicking in.

The reverse onus of proof effectively relieves the employee from proving why the employer took adverse action. This essentially means that once an employee alleges a prohibited reason was a “substantial and operative” reason for the adverse action, the burden shifts to the employer to prove otherwise (s361(1) FW Act; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500).

Causation is one of the avenues, and perhaps the most popular, mechanism by which employers can fight a GP claim. In practice, whether an employer succeeds in defending a claim turns on what was on the conscious, subjective mind of the relevant decision-maker(s). The key question is what actually motivated their decision to dismiss the employee.

Direct testimony from the decision-maker(s), if accepted as reliable by Court as credible and not contradicted by objective evidence, will usually be sufficient to discharge the reverse onus of proof (Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500). Ideally, any legitimate business reason underpinning a dismissal should be supported by contemporaneous records, internal communication, and clearly articulated in the dismissal letter.

What stands out to us as Employment Lawyers is just how nuanced causation can be. The following 2 cases illustrate how subtle distinctions in a decision-maker’s reasoning can shape the outcome of a GP claim.

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd

In this case, Mr Doevendans was dismissed following his participation in a lawful union-organised protest. During the protest, Mr Doevendans waved a “No principles SCABS No guts” sign at workers entering the mine. The General Manager dismissed Mr Doevendans for the following reasons:

• Mr Doevendans knew the word “scab” was highly offensive and contrary to workplace policy. Despite knowing this he chose to hold and wave the sign;

• He showed no contrition when confronted after the fact; and

• His conduct was seen as antagonistic to the mine culture the General Manager sought to promote.

The High Court accepted this reasoning and found that the dismissal was for misconduct that occurred during the lawful industrial activity, not because of Mr Doevendans’ participation in that activity.

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Service) Pty Ltd

Here, Mr Bryne announced he was “going to take sick leave [during the ANZAC public holiday] anyway” and later produced a medical certificate after his annual leave request was denied. He was dismissed because the Mine Manager believed he had lied about being sick and had taken sick leave when he was not entitled to do so.

Ironically, the primary Judge accepted Mr Bryne was genuinely ill that day. Yet the majority of the Full Court of the Federal Court accepted that the Mine Manager dismissed Mr Bryne based on a mistaken but genuine belief that he had acted dishonestly and not because he exercised a workplace right to take sick leave.

Ultimately, GP claims are won and lost on a fine-grained dissection of the decision-maker’s true reason(s) for dismissal.

The Probationary Period Trap

Dismissing employees on probation without prudent legal advice can be fraught with unforeseen legal risk.

Employers often assume it is safe to dismiss probationary employees. This false sense of security stems from the inability to bring an Unfair Dismissal claim as these employees generally do not satisfy the minimum employment period. But that comfort is often misplaced when it comes to the GP regime.

A seemingly straightforward and routine probationary dismissal can quickly escalate into something far more serious. This is especially when employees are dismissed close to the end of their probation, just as they are on the cusp of acquiring the right to make an Unfair Dismissal claim (Qantas Airways Limited & Anor v TWU [2023] HCA 27).

Costs to Employers’ Wallets

For employers, the real sting of GP claims lies in the process, not the outcome.

Many GP claims are defensible. The real challenge lies not so much in defending GP claim but rather the practical time, effort and resources in doing so. This difficulty is further compounded by the relatively low bar for potential litigants to bring these claims. This together with the reverse onus of proof means employers must devote a significant amount of time, money and resources to defending GP claims, regardless of their merit.

As a result, many employers feel they are constantly trying to navigate a legal minefield. A single misstep can trigger a lengthy and costly process.

Absent legislative reform, employers have to face the harsh reality that they may ultimately “win” the case on its merits and yet still lose in terms of the time and cost to achieve that outcome.
 
The Fair Work Commission is Drawing Harder Lines

Employers are not the only ones feeling the consequences of increasing GP claims. The Fair Work Commission (FWC) is also straining to keep pace with the influx of GP claims in recent years.

The FWC has sounded alarms about its unsustainable workload attributable to the spike in GP claims. Concerningly, President Hatcher predicted a 70% increase in the FWC’s workload over 3 years by the end of the 2026 financial year. In an attempt to manage the increased workload, the FWC has and is making changes to its processes. This includes settlement-focused conciliation conferences and potentially the inclusion of an AI disclosure statement in all applications lodged with the FWC.

Recently in June 2026, the Workplace Relations Legislation Amendment (Building Cooperative Workplaces No. 1) Bill 2026 (Cth) has been passed to help reduce the FWC’s workload. This Legislation will, amongst other things:

• Remove the requirement for the FWC to hold a formal hearing to establish whether a worker has been dismissed for dismissal-related GP claims; and

• Enable the FWC’s president to delegate their power to certify that a dismissal-related dispute could not be resolved by the FWC and can proceed straight to arbitration or to court.

Put simply, the system is overwhelmed and nearing its limits. However, whether the proposed reforms will effectively weed out poorly prepared or opportunistic GP claims remains an open question.

Conclusion

GP claims are unlikely to displace Unfair Dismissal claims entirely, albeit they are reshaping how the whole story of dismissal is now being read. As such, employers should treat any GP risk with an abundance of caution lest they get swept into a costly and time-consuming legal whirlwind.

Adam Colquhoun (Principal) and Grace Foo (Lawyer)

This article is general information only. It is not legal advice. If you need legal advice, please contact us.