The Fair Work Commission recently reported a massive increase in the number of General Protections Claims. Indeed, the first quarter of the 2025-26 financial year saw a 57% increase on the three-year average number of submissions.
This has sent alarm bells ringing, not only within the ranks of the Fair Work Commission (who need to deal with what they have referred to as an “unsustainable” increase), but perhaps more importantly, amongst employers.
Let’s take a look at just what General Protections Claims are, examine the likely reasons for the significant increase, and consider how you can better position yourself and your business to prevent or defend a claim.
So What is a General Protections Claim?
General Protections (also called “adverse action”) provisions sit within the Fair Work Act 2009 (Cth). In broad terms, they’re designed to stop employers from taking negative action (or “adverse action”) against a worker because they have a protected workplace right, have exercised that right, or have (or haven’t) engaged in certain activities.
A claim can potentially arise, for example, when an employee (or even a prospective employee) alleges they were treated unfavourably because they:
- Made a complaint or enquiry about their employment (pay, hours, safety, bullying, leave, flexibility, etc.)
- Used a workplace right (e.g., took personal leave, requested flexible work)
- Participated in a process permitted under workplace laws (e.g., contacted the Fair Work Ombudsman)
- Were involved in industrial activity
- Have a protected attribute under discrimination laws (note: discrimination claims can overlap)
“Adverse action” can include a range of actions taken by the employer against the claimant, for example:
- Dismissal
- A warning or performance management steps
- Reducing hours or changing duties
- Demotion
- Not offering a promotion or training
- Treating someone differently in a way that otherwise disadvantages them
A key reason these claims present employers with considerable risk is that they are subject to a reverse onus of proof. That means that once a worker alleges adverse action, the employer needs to be able to demonstrate that the action was taken for legitimate reasons and not for a prohibited reason. This is where documentation, process, and consistency become critical.
And as if that’s not enough, unlike Unfair Dismissal Claims, damages potentially awarded to successful claimants in relation to General Protections Claims are uncapped (indeed, in some cases the total penalties/damages/costs awarded have exceeded $2.5m!).
So Why the Significant Increase in General Protections Claims?
There are a few likely drivers behind the dramatic increase:
1) Employees are more aware of their rights
Information is easier to access than ever. Many employees now understand that “I made a complaint and then I was performance managed” can potentially become a General Protections issue, even if the employer’s action in commencing a performance management process was reasonable.
2) More people have access to General Protections Claims
Technically, an employee dismissed with less than 6 months service (or 12 months in the case of a small business), does not have access to Unfair Dismissal remedies. If they feel it’s warranted though (or frankly, even if they just want to “have a go”), a dismissed employee can lodge a General Protection Claim regardless of their length of service.
General Protections Claims are also potentially accessible by existing employees (as these claims do not only relate to employment termination/dismissal matters), prospective employees and independent contractors.
3) There are increasingly low barriers to lodging a claim
While quite a technical area of law, there seems to be consensus that the rise of AI has also contributed to the significant increase. We’ve seen for ourselves several instances of AI apparently being used to put together comprehensive and reasonably sophisticated claim documents, without the involvement and associated cost of engaging legal specialists.
Also, Fair Work application costs to lodge a claim remain quite modest (currently ~$90).
4) Claims can be framed broadly
General Protections provisions are wide. A “complaint or enquiry” can be informal, and it can relate to many aspects of employment. That breadth makes it easier for disputes to be framed as adverse action.
5) More workplace change and pressure
In the last few years, many businesses have navigated:
- Cost pressures and restructures
- Hybrid work and flexibility requests
- Increased psychosocial safety focus
- Higher levels of conflict and burnout
When pressure is high, communication can slip, documentation can be light, and decisions can be made too quickly, all of which increases risk.
6) Performance management is, unfortunately, frequently mishandled
Performance management is one of the most common “flashpoints.” If an employee has recently raised a concern (pay, safety, bullying or workload for example) and then receives a warning or otherwise considers themselves disadvantaged, the timing alone can trigger a claim.
This doesn’t mean you can’t manage performance; you absolutely can and should, but it does mean you need to be able to show:
- the concerns were genuine
- the process was fair
- the decision was based on evidence, and
- the same approach would have been taken regardless of the employee’s concern or action that has given rise to the claim.
7) Terminations are often rushed (or poorly communicated)
Small businesses often move quickly, and sometimes that speed is the problem. If a termination happens without a clear process, without procedural fairness, or with “off the cuff” comments that can be misinterpreted, the business can be exposed.
Protecting Your Business: Practical Steps That Make a Real Difference
Here are a few tips to reduce the likelihood of a claim and strengthen your position if one is lodged.
1) Treat complaints and enquiries as “risk moments”
When an employee raises a concern, assume that it may later be referenced. That doesn’t mean you need to walk on eggshells, but it does mean you should:
- Acknowledge the issue
- Clarify what the employee is asking for
- Respond in writing (even briefly) and try to “close out” the issue
- Keep your tone calm and professional throughout
- Don’t take any action to disadvantage the employee as a result of them raising the concern
2) Separate “the complaint” from “the management action”
If performance or conduct needs to be addressed around the same time as a complaint, be deliberate:
- Insofar as possible keep the matters and related discussions separate
- Ensure the performance issue is supported by evidence
- Use a fair process (meeting, chance to respond, support person if appropriate)
- Avoid emotionally loaded language
- Make sure the decision-maker can clearly explain the legitimate reasons for the action
3) Document decisions properly (without writing a novel)
In General Protections matters, documentation often makes or breaks the defence.
Be sure to keep:
- Notes of key meetings (dated, factual)
- Copies of relevant emails
- Performance records and examples
- A short decision record explaining the reasons for action
Bonus Tip: write as if a third party may read it later, because they just might!
4) Train your frontline leaders
Many claims start with a supervisor’s comment or reaction. A quick refresher for managers on:
- How to handle complaints
- How to manage performance fairly
- What not to say in the heat of the moment
…can prevent issues before they start.
5) Be consistent across employees
Inconsistency is a red flag. If two employees do the same thing but only one is disciplined, and that one happened to recently raise a complaint or take leave, you can see how quickly a claim might form.
6) Get advice early (before you act)
If you’re considering termination, restructuring, or formal performance management, especially where there has been a recent complaint, leave, or dispute/conflict, it’s worth getting HR advice early.
A short conversation before you act can:
- Clarify your options
- Identify risk points
- Improve your documentation
- Help you choose the cleanest/less risky process
If a Claim is Made: Don’t Panic, but Don’t Ignore it
If you receive a General Protections application or correspondence that suggests a claim is coming:
- Don’t respond emotionally
- Preserve records (emails, notes, rosters, performance documents)
- Avoid further adverse action without advice
- Get support to prepare your response and strategy
Handled well, many matters resolve early. Handled poorly, they can escalate quickly.
Need a Hand? We’re Here to Help
General Protections Claims are one of those areas where good intentions aren’t enough; process and evidence matter. If you’re unsure whether a complaint, performance issue, or termination could trigger a claim, we can help you assess the risk and take steps to minimise those risks.
If you have a current issue and would like to talk it through, reach out and we’ll help you map out the safest way forward.
This article provides general information which we believe to be correct at the time of posting. It is a summary and must not be considered complete, professional or legal advice. If you’re an employer and need support that takes into account your particular circumstances, please contact us directly.
