The Power of Presumption: How General Protections Shift the Legal Burden in Your Favour
If you’ve been treated unfairly at work for standing up for your rights, the law may be more on your side than you think. One of the most strategic advantages of lodging a General Protections claim — especially after dismissal — lies in a legal rule that flips the burden of proof: section 361 of the Fair Work Act 2009 (Cth).
Here’s how it works — and why it can give you real power when challenging unlawful treatment.
What Is Section 361?
Section 361 of the Fair Work Act introduces a rebuttable presumption. In simple terms: if you allege that your employer took adverse action (such as termination, demotion, or altering your job) for a prohibited reason — like making a complaint, taking sick leave, or asserting your entitlements — then the law presumes you’re telling the truth.
It’s then up to the employer to prove otherwise.
They must show, on the balance of probabilities, that none of the reasons for the action included your exercise of a workplace right. That’s not always easy to do — especially when managers fail to document their decision-making or when the timeline doesn’t add up.
Why This Presumption Matters
This reversal of the usual legal burden is powerful for employees because:
You don’t have to prove what your employer was thinking — they must show what they weren’t thinking.
It protects workers from being punished for standing up, asking questions, or asserting their rights.
It discourages employers from retaliating against lawful employee conduct without careful justification.
And it’s not just about dismissals. The presumption also applies to non-dismissal disputes, such as threats, coercion, or discriminatory treatment, if those acts occur because of your workplace rights.
What Kinds of Rights Are Protected?
The General Protections provisions cover a broad range of "workplace rights," including:
Lodging a complaint or inquiry about employment conditions
Requesting flexible working arrangements
Taking (or proposing to take) leave
Filing a workers compensation claim
Being temporarily absent due to illness or injury
Being part of a union (or not)
Participating in lawful industrial activity
If an adverse action is taken because you did any of these things, you may have a strong General Protections case.
It’s Not Enough to Say “It Wasn’t the Reason”
Employers often argue that performance, restructuring, or other business needs led to the adverse action. But the Fair Work Commission or Federal Circuit and Family Court will look for contemporaneous evidence — documents, emails, timelines — to test whether these reasons stack up.
If there's a pattern of retribution after you raised concerns or exercised your rights, the presumption in section 361 can be very difficult for them to overcome.
Courts have repeatedly confirmed that all relevant decision-makers must give evidence in order to rebut the presumption. If just one manager fails to front up and explain their reasoning, the case can fall apart for the employer.
For example, in Flavel v Railpro Services Pty Ltd [2013] FCCA 1189, the employer failed to call all decision-makers involved in a dismissal. As a result, the Court drew a negative inference — reinforcing how seriously the presumption under s.361 is taken.
Why Employees Should Consider This Path
General Protections claims are not about whether a dismissal was “harsh, unjust or unreasonable” like in unfair dismissal. Instead, they focus on why the action was taken. That shift in focus, and the reversal of the burden of proof, can make them strategically more potent for employees with evidence of retaliation or discriminatory motives.
If you’ve taken a stand at work and faced consequences, this legal pathway could be the key to holding your employer accountable — without needing to prove the impossible.
The general protections regime exists for a reason: to ensure that workers aren't punished for doing the right thing.
With the backing of s.361, your voice carries legal weight. It’s more than a complaint — it’s a challenge to power, and the law starts by believing you.
