In This Dismissal Claim, the Employer Has to Disprove Your Allegation

If you’ve been dismissed and are weighing up your options, there’s a crucial legal distinction in a general protections dismissal claim that sets it apart from unfair dismissal. To bring this kind of claim in the first place, you must allege that you were dismissed because of a prohibited reason—such as taking sick leave, making a complaint, or exercising a workplace right, and not every dismissal will be eligible under these laws.

The unique aspect of a general protections dismissal claim is that the burden of proof shifts to your former employer. That means once you allege that a prohibited reason was involved in your dismissal—such as exercising a workplace right—it becomes the employer’s job to prove that wasn’t the reason. You don’t have to prove that the unlawful reason was their motive. They must prove that it wasn’t.

This is known as the reverse onus of proof, and it’s set out in section 361 of the Fair Work Act 2009. It means you don’t need to establish that the unlawful reason was their motivation. Instead, they must prove that it played no part whatsoever in their decision, as the responsibility or burden lies with them. If the employer can’t show that your dismissal had nothing to do with the prohibited reason you’ve raised, they may be found in breach of the general protections provisions. In an unfair dismissal claim, the onus is on you to prove the dismissal was harsh, unjust or unreasonable.