What Every Small and Medium Business Needs to Know in Sydney, Melbourne, Brisbane and Perth
If you employ staff in Australia, there is one area of employment law that continues to catch businesses off guard: General Protections claims under the Fair Work Act.
Unlike unfair dismissal claims, General Protections matters can arise even when an employee is still within probation, has only been employed for a short period, or where the employer believes they have acted reasonably.
For small and medium businesses, these claims can be complex, stressful, and costly if not handled correctly.
This article explains:
- What a General Protections claim is
- What constitutes a “workplace right”
- Why employees choose this pathway instead of unfair dismissal
- A real-world style case study
- What employers should do to manage risk
What Is a General Protections Claim?
A General Protections claim arises when an employee alleges that their employer took adverse action against them for exercising a workplace right.
The purpose of these provisions under the Fair Work Act 2009 (Cth) is to protect employees from retaliation or punishment for asserting lawful rights at work.
Adverse action can include:
- Termination of employment
- Demotion or changes to duties
- Performance management or disciplinary action
- Reduction in hours or responsibilities
- Any action that disadvantages the employee
- Importantly, the focus is not whether the employer could take the action — but why the action was taken.
What Is a “Workplace Right”?
Employees have a workplace right if they:
1. Exercise a Legal or Contractual Right
This includes rights under:
- The Fair Work Act
- An award or enterprise agreement
- An employment contract
- Workplace policies (e.g. grievance or WHS policies)
- Examples include taking personal leave, requesting flexible work, or accessing entitlements.
2. Make a Complaint or Inquiry About Their Employment
This is one of the most common triggers for General Protections claims.
A “complaint” can be informal and does not need to be written or formal. It may include:
- Raising concerns about management behaviour
- Reporting bullying or harassment
- Questioning performance feedback
- Raising WHS or psychosocial safety issues
- Questioning pay or entitlements
Importantly, the complaint does not need to be proven or even reasonable — it simply needs to be made in good faith.
Why Employees Choose a General Protections Claim Instead of Unfair Dismissal
Many employers assume unfair dismissal is the main legal risk when terminating employment. In reality, General Protections claims are often more attractive to employees, particularly in small to medium businesses.
Key Differences at a Glance:
Unfair Dismissal General Protections
Minimum employment period applies No minimum employment period
Small business exemption applies No small business exemption
Compensation is capped Compensation is uncapped
Focuses on fairness Focuses on employer’s motive
Lower legal complexity Higher legal risk
For SMEs, this means probationary periods and short tenure do not provide the protection many employers assume they do.
Case Study: Jane Smith (Fictional)
Background
Jane Smith was employed as a project coordinator by a medium-sized business in Brisbane. She was still within her six-month probation period.
During her employment, Jane raised concerns with her manager about:
- Being spoken to in a dismissive and demeaning manner
- Unclear and constantly changing expectations
- Feeling undermined in front of colleagues
She raised these concerns via email and requested a meeting with HR.
Two weeks later, Jane was placed on a performance improvement plan. Shortly after, her employment was terminated on the basis of “unsatisfactory performance during probation”.
Why This Became a General Protections Issue
From the employer’s perspective, the decision was a routine probationary termination.
From a legal perspective, however:
- Jane had exercised a workplace right by raising a complaint
- The termination occurred shortly afterwards
- There was limited contemporaneous evidence of performance issues prior to her complaint
This timing raised a critical question:
Was the termination because of performance, or because Jane exercised her right to complain?
The employer was required to justify its decision with clear, objective evidence. In the absence of that, the risk shifted significantly.
The matter ultimately resolved through a confidential settlement following Fair Work Commission conciliation.
Why These Claims Are High Risk for Employers
General Protections matters are high-risk because:
- The onus of proof shifts to the employer
- Poor documentation can undermine an otherwise legitimate decision
- Performance management must be genuine, consistent, and well-evidenced
- Even well-intended actions can appear retaliatory if poorly timed
For SMEs, these claims can be disruptive, expensive, and time-consuming if not handled carefully.
Practical Tips for Employers
To reduce risk:
- Document performance concerns early and consistently
- Separate performance management from employee complaints
- Avoid knee-jerk reactions after a complaint is raised
- Train managers on how to respond to grievances
- Seek advice before taking adverse action involving a complaining employee
Final Thoughts
General Protections claims are one of the most misunderstood and underestimated areas of Australian employment law — particularly for small and medium businesses.
Understanding how workplace rights operate, and how easily a claim can arise, is essential for employers operating in Sydney, Melbourne, Brisbane and across Australia.
If you’re facing a complaint, managing a termination, or unsure how to proceed, early advice can prevent significant legal and commercial risk.