This opinion article is written by Chao Ni, Workplace Relations Principal at MST Lawyers.
One complaint is all it takes to trigger a general protections claim.
A single complaint sent before termination is enough to put an employer on a two-year litigation footing. That is not a criticism of employees who raise genuine concerns. It is a criticism of a system that treats every pre-termination grievance as a potential workplace right and every dismissal that follows it as presumptively tainted.
The legal architecture makes this accessible. Section 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) protects an employee who is “able to make” a complaint or inquiry in relation to their employment.
Section 361 then reverses the onus. Once the allegation is made, the employer bears the onus to prove that the complaint formed no part of its termination reasons. There is no minimum employment period, no high-income threshold, no small business carve-out and no cap on compensation. For an applicant locked out of unfair dismissal by s 382, the general protections claim is not a second option; it is the only door left, and it is wide open.
The Fair Work Commission: a gatekeeper without a gate
The Fair Work Commission is where all general protections claims involving dismissal must be initially made. One would think that the Commission would act as a gatekeeper of sorts to block unmeritorious applications or responses, but in practice it holds no key. Under s 368 the Commission typically deals with the dispute by conciliation conference, and if it fails it must issue a certificate under s 368(3)(a). The applicant then has 14 days under s 370 to file in court.
The only merit filter is s 368(3)(b). If the Commission considers that the claim would not have a reasonable prospect of success, it must advise the parties accordingly. That advice is rarely given. Even where it is expressed, it binds no one – the certificate is still issued and the applicant may still file a claim in court.
The practical result is that the conference functions as a settlement window, not a screening stage. Conciliators are under no obligation to test the workplace right, the adverse action or the causal link. Most conciliators would be reluctant to inform an applicant that their claim looks like an overdrawn bow, ready to wreak havoc but unlikely to hit any meaningful target. Weak claims pass through untouched, now carrying the apparent imprimatur of having “gone through the Commission”. Respondents learn quickly that the only true merits test sits two years and a six-figure defence budget away.
The Federal Court hearing nobody budgets for
From filing to judgment on liability, contested general protections claims in the Federal Court or the Federal Circuit and Family Court commonly take up to two years, sometimes longer. The reverse onus drives much of that. Every decision-maker must give evidence of their actual reasons, and well-established legal authority makes their credibility the heart of the case.
Then comes the part almost everyone forgets. Courts frequently determine liability first and leave relief for later. A win on liability is not an order for payment. It opens a second contest on economic loss, causation, mitigation, non-economic loss and civil penalties.
That second contest brings fresh evidence, often expert evidence, further submissions and another hearing date. It can add months. Yet costs estimates given at the outset, on both sides, routinely stop at the liability trial. Clients are told what it costs to win, not what it costs to be paid.
All of this runs against s 570, under which each party ordinarily bears its own costs. An employer who successfully defends a weak claim through two hearings will usually recover nothing. An applicant who wins may find that most of the award has already gone to their lawyers.
The quantum hearing exposes a second misconception. Applicants increasingly arrive with a psychological injury diagnosis and an expectation of income replacement until retirement. Section 545(2)(b) does not support that expectation.
The provision compensates loss suffered “because of the contravention”. That is not loss caused by the workplace generally, the complaint process or the litigation. Two recent remedies judgments illustrate the disconnection between expectation and reality.
In Han v St Basil’s Homes (No 2) [2025] FCA 448, Ms Han was dismissed on 23 January 2020, and the court found contraventions of ss 340 and 351 on 28 August 2023. The court then determined remedies on 6 May 2025, more than five years after the dismissal. Ms Han advanced a claim for compensation and penalties totalling $2,471,381.65, including $784,277.83 for future economic loss from the date of the quantum hearing.
The presiding judge found that much of the applicant’s evidence was directed to a common law personal injury claim, untethered to the statutory norm. Her medical symptoms began in June 2019, months before the dismissal, and every expert had identified multiple workplace stressors. Ultimately, future economic loss was assessed on an 18-month recovery at $61,559.62, with $175,000 for past loss and $75,000 general damages.
In Farragher v PBE Rutherford Mining Pty Ltd (No 2) [2026] FedCFamC2G 603, Mr Farragher’s employment was terminated on 5 January 2022, while he was on workers’ compensation leave. The court found contravention of ss 340 and 352 on 2 August 2024, and remedies were determined on 17 April 2026. Mr Farragher advanced a claim for $256,334.38 in future economic loss and an additional amount of $200,000, said to be in recognition of the permanence of his injury.
The court found his role was already earmarked for legitimate redundancy in June 2022, cutting off loss beyond that date. The evidence also failed to link his ongoing psychological condition to the termination itself, as distinct from earlier workplace events. He recovered $34,724.44 for past economic loss and $50,000 general damages.
The lesson is not that psychological harm goes uncompensated. It is that where symptoms pre-date the adverse action, causation fragments and the retirement-age claim might collapse. Expert evidence must address the contravention as found, not the workplace as experienced, and account for any workers’ compensation already paid. Applicants who are not told this early learn it four or five years later, at the second hearing.
Why general protections claims are a win for lawyers, not clients
The economics are plain. A low filing bar, a reverse onus, a no-cost jurisdiction and an uncapped remedy produce claims whose value lies less in the merits than in the cost of defending them. Many respondents settle at what is, candidly, nuisance value – a sum calibrated to the respondent’s defence budget rather than the applicant’s loss.
That is a rich model for practitioners on both sides of the record. It is a poor one for the litigating parties. Most parties do not understand how the general protections provisions operate, what they must ultimately prove, or why their case is valued as it is. They wait a year or two for an outcome they could have negotiated, often on similar terms, at the Commission conference.
For genuinely aggrieved employees, the cost is worse. Meritorious claims queue behind weak ones, and judicial time spent on speculative litigation is time not spent on serious contraventions.
Many applicants cannot distinguish an unfair dismissal application from a general protections claim. They file an F8 because they were told it has no eligibility hurdles, not because they understand the causal inquiry it requires. Few appreciate that s 725 forces an election between unfair dismissal and general protections remedies, or that “I was treated unfairly” is not the same as “I was dismissed because I exercised a workplace right”.
Generative AI has amplified the problem. Self-represented applicants can now produce lengthy, confident and superficially legal submissions in minutes. They cite real provisions, sometimes non-existent cases, and frame every workplace frustration as a protected complaint. The volume rises, the quality does not, and respondents are obliged to answer every page.
Courts and the Commission are absorbing this load with no corresponding change to the filter at the front end. A tool that lowers the cost of drafting a claim to near zero, inside a system with no meaningful merit screen, was always going to produce exactly this outcome.
How to fix the general protections system: six reforms
None of these problems require dismantling the general protections regime, but in my respectful opinion, it is time to tinker with the existing rules.
Give s 368(3)(b) consequences
Where the Commission advises that a claim lacks reasonable prospects and the applicant proceeds, that advice should be a mandatory consideration under s 570. Applicants keep their right to sue, but they carry the risk of ignoring an informed warning.
Make costs consequences mutual
A respondent found to have contravened faces civil penalties under s 546, which may be ordered to be paid to the applicant in recognition of their legal costs incurred. But an applicant who pursues an unmeritorious claim through two hearings faces almost no costs risk, because s 570 shields them. A presumptive costs order against an applicant who fails on liability, at least where the Commission advised against proceeding, would restore some balance without closing the door on genuine claims.
Require particulars at lodgement
The initial Form F8 application in the Fair Work Commission should identify particulars behind each alleged exercise of workplace right (e.g. when and to whom the complaint was made, and the entitlement it concerned). That is the minimum required for trial and asking for it on day one costs a genuine applicant nothing.
Default to oral hearings
Most general protections dismissal claims turn on a narrow question: why did the decision-maker act? Replacing rounds of affidavits and written submissions with oral evidence and short oral submissions would cut months and much of the cost. The reverse onus already puts decision-makers’ credibility at the centre, and that is tested in the witness box, not on paper.
Confine the evidence
Evidence should be limited to the pleaded workplace right, the adverse action and the decision-maker’s reasons. Events which are temporally remote from the dismissal should be disregarded unless they bear directly on those reasons. Too many trials become a retrospective of the entire employment relationship.
Price the whole case
Practitioners on both sides should estimate through quantum, not just liability. Honest estimates settle cases, and should be mandated at the Commission conciliation and court-ordered mediation.
The general protections provisions exist to stop employers punishing people for exercising their rights. That purpose is worth defending.
But a regime in which one email triggers a two-year, two-hearing contest, screened by a gatekeeper with no gate, serves neither the employees it was built for nor the legal system that administers it. It serves the process itself.
Before a workplace complaint becomes a bigger problem
If you are considering dismissal after an employee has raised a complaint or workplace concern, get advice before you act. The timing and reasons for the decision can be critical in a later general protections claim.
If you’re facing a general protections claim — or want to reduce your exposure before one arises — contact Chao Ni and the Employment Law and Workplace Relations team at MST Lawyers.
