What is a general protections claim?
In simple terms, a general protections claim can arise when an employee believes they have been treated adversely because they exercised a workplace right or were protected under the general protections provisions.
That might include things like:
making a complaint or enquiry about their employment
asking questions about pay or entitlements
raising a workplace health and safety issue
taking leave
being away from work because of illness or injury
raising concerns about workplace treatment
being involved in industrial activity
requesting conversion to permanent employment
requesting reasonable modifications to their work role/load
requesting flexible work arrangements such as change in hours or working from home
The Fair Work Commission explains that adverse action can include being dismissed, demoted, overlooked for promotion, treated differently, having a job changed, not being hired, or being threatened with any of those actions. For it to fall under general protections, the action must be taken because of a prohibited reason.
And this is where employers can get caught. Lest bust the myth that a general protections claim can only occur when a termination has taken place.
The issue is not always whether the employer had a valid concern about the employee’s conduct or performance or a valid concern about the employee's questions or requests.
The bigger question can become:
Why was the action taken, and can the employer demonstrate that reason?
Why are general protections claims risky?
General protections claims can be more complex than many employers expect.
They can involve dismissal, but they can also involve action taken while the employee is still employed. They can also move beyond the Fair Work Commission if the matter does not resolve.
For general protections applications involving dismissal, the Fair Work Commission explains that if a matter is not resolved and a certificate is issued, parties may then apply to the Federal Court or the Fair Work division of the Federal Circuit and Family Court, or jointly apply for arbitration by the Commission.
That means these matters can become time-consuming, stressful, and expensive very quickly.
One of the biggest practical risks is that the employer may need to show that the action was taken for a lawful and legitimate reason, not because the employee exercised a workplace right.
That is why documentation, timing, and process matter so much.
If the paperwork is light, the decision looks rushed, or the action happens soon after an employee raises an issue, the risk can increase.
The danger zone: complaints followed by disciplinary action
One of the biggest risk areas is when an employee raises a workplace complaint and, not long after, the employer starts performance management, issues a warning, suspends the employee, or moves towards termination.
This does not automatically mean the employer has done the wrong thing.
Employers are allowed to manage performance. They are allowed to investigate misconduct. They are allowed to make decisions about whether someone is suitable for a role.
But the process needs to be fair, reasonable, consistent, and clearly based on legitimate reasons.
For example, if an employee complains about their manager’s behaviour on Monday and then suddenly receives a performance warning on Friday, that timing may raise questions.
Even if there were genuine performance concerns, the employer needs to be able to show:
the concerns existed independently of the complaint
the employee knew about the concerns
the process was fair
the complaint was handled appropriately
the action was not retaliation
This is where employers can unintentionally create risk. Not because they had no reason to act, but because the process looks reactive.
Probation is not a free pass
Another common misconception is that probation gives employers a risk-free window to end employment.
It does not.
Probation periods can be useful, but they do not remove an employee’s workplace rights.
For unfair dismissal claims, employees generally need to complete the minimum employment period before they can apply. The Fair Work Commission states this is usually six months, or one year where the employer is a small business.
But general protections claims are different.
An employee may still bring a general protections claim if they believe the real reason for the termination was connected to a workplace right. An Individual may even bring a claim before they are an employee, for example if a candidate discloses they have an illness in interview and they are not hired, they could lodge a claim even without being an employee.
This becomes especially risky where an employee is nearing the end of probation or approaching an employment milestone.
The safer approach is to actively manage probation from the start (including the recruitment process).
Do not wait until the final week to raise concerns. Give feedback early, document the issues, explain what needs to improve, and keep clear records of the steps taken.
Investigations need to be fair, not just formal
Workplace investigations are another area where general protections risks can grow quickly.
A formal-looking process is not enough if the outcome appears to have been decided before the employee has had a genuine opportunity to respond.
Before relying on an investigation or disciplinary process, employers should ask:
Has the employee been told clearly what the concerns are?
Have they been given enough information to properly respond?
Has their response actually been considered?
Is the decision based on evidence?
Is the proposed outcome reasonable in the circumstances?
Has anyone involved in the process shown frustration, bias, or a personal issue with the employee?
Is there a recent complaint, pay query, leave request, injury, or safety concern that could complicate the decision?
If the answer to that last question is yes, it does not mean you cannot act.
But it does mean you should slow down and make sure the process is sound.
A rushed or poorly handled investigation can create the impression that the process was simply designed to justify a decision that had already been made.
Senior managers need to do more than rubber-stamp decisions
Another important lesson for employers is that decision-makers need to genuinely review the information before approving disciplinary action or termination.
It can be risky for a manager, CEO, or business owner to simply accept a recommendation without understanding:
what evidence supports the decision
what the employee said in response
whether the process was fair
whether the outcome is reasonable
whether there are any general protections risks
If a claim is made later, the employer may need to explain who made the decision, what they considered, and why they reached that outcome.
That is much harder to do if the decision-maker simply relied on someone else’s summary.
Practical steps employers can take
General protections claims can feel legal and technical, but the practical prevention steps are actually quite straightforward.
Employers should:
take workplace complaints seriously
avoid reacting emotionally when an employee raises an issue or request
keep complaint handling separate from performance management where possible
document performance or conduct concerns as they arise
give employees a genuine opportunity to respond
make sure disciplinary outcomes are based on evidence
avoid rushing termination decisions, especially near probation or eligibility milestones
ensure managers understand what workplace rights are
review investigation and disciplinary procedures
seek advice early if there is any doubt
The key is to create a clear paper trail showing that decisions were made for legitimate reasons and through a fair process.
The bottom line
General protections claims are not just a risk for large organisations.
Small and medium-sized employers can be exposed too, especially where decisions are made quickly, informally, or without proper documentation.
You may have a valid reason to manage, deny requests, discipline, or dismiss an employee.
But if the timing is poor, the process is messy, or the decision appears connected to a workplace complaint or right, the risk can increase significantly.
Before taking action, pause and ask:
Can we clearly show why we are making this decision?
If the answer is no, it is worth getting advice before moving forward.
Because a rushed decision today can become a costly claim tomorrow.
Written By
HR Dynamics
HR Consultants
