Last Updated on 19/09/2025 by Damin Murdock
The general protections provisions in the Fair Work Act 2009 (Cth) are among the most powerful legal tools available to employees and unions. They protect workplace rights and expose employers who take adverse action for prohibited reasons. In hospitality, where disputes about pay, rosters, and workplace safety are frequent, employers face significant risks of general protections claims. Unlike unfair dismissal claims, which have capped compensation, general protections claims can result in uncapped damages, penalties, and personal liability for managers involved in decision-making.
The Importance of Documentation for Employers
Adverse action occurs when an employer dismisses, demotes, reduces hours, alters rosters, or otherwise disadvantages an employee because they exercised a workplace right, engaged in industrial activity, or held a protected attribute such as union membership. The law shifts the burden of proof to the employer, who must prove that the action was not taken for a prohibited reason. This reversal is one of the most challenging aspects for hospitality employers, as it requires strong documentation and evidence of decision-making processes.
Common Traps and Examples
Common traps in hospitality include reducing shifts after an employee complains about underpayment, dismissing staff after they lodge a safety complaint, or refusing promotions to union members. For example, if a waiter raises concerns about unpaid penalty rates and their shifts are subsequently cut, the employer must prove the reduction was for legitimate business reasons, such as reduced customer demand, and not retaliation. Failure to provide clear evidence can result in findings of unlawful adverse action.
Case law reinforces this strict approach and has confirmed that an employer’s reasons must be proven by the decision-maker’s evidence, and subjective intent is scrutinised. In hospitality, this means managers must carefully document reasons for decisions and separate performance management from issues relating to workplace rights.
Practical Steps for Employers
- training managers on workplace rights,
- ensuring all employment decisions are based on legitimate business reasons,
- detailed written records of performance issues, and
- consulting HR or legal advisors before taking adverse action.
Employers should also ensure workplace policies support employee rights, such as allowing complaints to be raised without fear of reprisal.
Bottom Line
Adverse action claims are complex and high risk. Hospitality employers should focus on transparency, documentation, and fair treatment to reduce exposure to costly claims.
Feel free to contact Damin Murdock at Leo Lawyers via our website, on (02) 8201 0051 or at office@leolawyers.com.au. Further, if you liked this article, please subscribe to our newsletter via our Website, and subscribe to our YouTube , LinkedIn, Facebook and Instagram. If you liked this article or video, please also give us a favourable Google Review.
DISCLAIMER: This is not legal advice and is general information only. You should not rely upon the information contained in this article and if you require specific legal advice, please contact us.
Damin Murdock (J.D | LL.M | BACS - Finance) is a seasoned commercial lawyer with over 17 years of experience, recognised as a trusted legal advisor and courtroom advocate who has built a formidable reputation for delivering strategic legal solutions across corporate, commercial, construction, and technology law. He has held senior leadership positions, including director of a national Australian law firm, principal lawyer of MurdockCheng Legal Practice, and Chief Legal Officer of Lawpath, Australia's largest legal technology platform. Throughout his career, Damin has personally advised more than 2,000 startups and SMEs, earning over 300 five-star reviews from satisfied clients who value his clear communication, commercial pragmatism, and in-depth legal knowledge. As an established legal thought leader, he has hosted over 100 webinars and legal videos that have attracted tens of thousands of views, reinforcing his trusted authority in both legal and business communities."
