Fair Work · General Protections

Employee Threatening to Go to Fair Work Australia — What Should You Do?

7 Apr 2026 By Fitz HR 7 min read

An employee just said "I'm going to Fair Work." Your stomach dropped. What you do — and say — in the next few hours will determine whether this stays a conversation or becomes a formal claim. Here's exactly how to handle it.

First: Don't Panic

A threat to go to Fair Work is not a summons. It does not mean a claim has been lodged. It does not mean you've done something wrong. But it does mean you need to stop, think, and handle the next few steps carefully — because how you respond from this moment forward matters significantly.

The Key Rule

Most venue owners make the situation worse in the first 60 minutes — not because they did something wrong, but because they reacted before they thought. Once an employee has threatened to go to Fair Work, any adverse action you take against them — cutting their hours, changing their roster, dismissing them — can be challenged as retaliation. This protection applies regardless of whether they actually lodge a claim.

What to Do in the Next 24 Hours

1
Stop the conversation — immediately

Do not get drawn into a heated exchange. Do not make promises, admit liability, or try to talk them out of it. Say something like: "I hear you. Let me look into this and come back to you." Then end the conversation calmly.

2
Document everything immediately

Write down exactly what was said, when, where, and who was present. Do this within the hour while it's fresh. If there are witnesses, note their names. This contemporaneous record is important if the situation escalates.

3
Understand what the actual complaint is

What are they actually alleging? Underpayment? Unfair treatment? A dismissal claim? The type of complaint determines your exposure and your response. If you don't know, ask in writing: "Can you please let me know in writing what your specific concern is so I can address it properly?"

4
Check whether the complaint has merit

Honestly assess whether there has been an underpayment, a breach of Award entitlements, or a procedural failure. If there has been a genuine error, the fastest and cheapest resolution is usually to acknowledge it and fix it — before a formal claim is lodged.

5
Get advice before responding formally

Do not send any written response to the employee or their representative without understanding your position. A poorly worded email in this situation can significantly worsen your exposure.

What to Do — and What Not to Do

Do
  • Stay calm and professional in all communications
  • Document the threat and everything that follows
  • Review whether the complaint has merit honestly
  • Continue treating the employee exactly as before
  • Get advice before responding in writing
  • Rectify genuine errors quickly and in good faith
Don't
  • Cut their hours, change their roster, or demote them
  • Dismiss them — this looks like retaliation regardless of reason
  • Make verbal promises or admissions in the moment
  • Talk to other staff about the situation
  • Ignore it and hope it goes away
  • Send an emotional written response

Understanding the General Protections Risk

The most dangerous aspect of this situation is the general protections provisions of the Fair Work Act 2009 (Cth). These provisions make it unlawful to take adverse action against an employee because they have exercised a workplace right — and complaining to or threatening to go to Fair Work is a workplace right.

Adverse action includes dismissal, demotion, reducing hours, changing rosters to disadvantage the employee, or treating them differently in any negative way.

There is no minimum employment period for a general protections claim — unlike unfair dismissal which requires 6 months. There is also no cap on compensation. Courts have awarded significant damages in these cases, including for non-economic loss. If an employee can show they were treated adversely after threatening Fair Work, the burden shifts to you to prove it wasn't because of the threat.

A Common Real-World Scenario

A casual employee complains about a suspected underpayment and mentions Fair Work in the same conversation. The following week, their shifts are reduced. The reduction may have been for completely legitimate operational reasons — but it now looks retaliatory. The employee lodges a general protections claim. The burden is on the employer to prove the shift reduction had nothing to do with the complaint. This is one of the most common hospitality HR claims the Fair Work Commission sees.

What Not to Do Right Now

These are the mistakes that turn a manageable situation into an expensive one:

✗
Don't cut their hours, change their roster, or treat them differently. This is the single most common way a complaint becomes a general protections claim. The moment you take adverse action, the burden shifts to you to prove it wasn't retaliatory.
✗
Don't dismiss them — even if you were already planning to. Any termination that follows a Fair Work threat looks retaliatory, regardless of timing. If dismissal was already in motion, document that it was — before proceeding.
✗
Don't send an emotional written response. No frustrated emails, no defensive texts. Every written communication is potential evidence. If you need to respond in writing, draft it, wait 12 hours, then review it again.
✗
Don't discuss it with other staff. It becomes gossip, it creates witnesses, and it can contribute to a hostile work environment claim.
✗
Don't ignore it hoping it goes away. An unresolved complaint doesn't disappear — it compounds. The Fair Work Ombudsman takes inaction as seriously as the wrong action.

What if the Complaint Has No Merit?

Even if you are confident the complaint is unfounded, the process is the same. Even completely unfounded complaints can become expensive if your response creates legal risk — and it's your response, not their complaint, that the Commission will scrutinise. You still cannot take adverse action. You still need to respond professionally. You still need to document everything.

If you are also considering termination during this period, read our guide on whether you can dismiss someone immediately — because the timing of a dismissal relative to a Fair Work threat is critical. If a claim is actually lodged at Fair Work, both unfair dismissal and general protections matters go through a conciliation process first. Most are resolved there without a formal hearing. If your documentation is solid and your process was fair, your position at conciliation will be strong.

Frequently Asked Questions

Can an employee threaten to go to Fair Work Australia?
Yes — and it is completely lawful. Threatening to contact the Fair Work Commission or Fair Work Ombudsman is an exercise of a workplace right under the Fair Work Act 2009 (Cth). You cannot discipline, dismiss, or treat an employee adversely because they have made or intend to make a workplace complaint.
Is it illegal for an employee to threaten to go to Fair Work?
No. An employee threatening to contact Fair Work is exercising a protected workplace right. What is illegal is the employer taking adverse action in response to that threat — cutting hours, changing rosters, dismissing the employee, or treating them differently in any negative way because of the complaint.
What happens if an employee actually goes to Fair Work?
Once a claim is lodged at the Fair Work Commission, both parties are contacted and invited to conciliation — an informal, confidential process facilitated by the Commission. Most matters are resolved at conciliation. If conciliation fails, the matter may proceed to arbitration or the Federal Court. The process is faster and less expensive than litigation, but still time-consuming and reputationally sensitive.
What should I do if an employee threatens to go to Fair Work?
Stay calm, stop the conversation, and do not say anything that could be used against you. Document what happened immediately. Do not retaliate or treat the employee differently because of the threat — this is a protected workplace right and adverse action for exercising it is a serious breach of the Fair Work Act.
Can an employee actually go to Fair Work over anything?
No. The Fair Work Commission handles specific types of disputes — unfair dismissal, general protections, underpayment, and workplace disputes under enterprise agreements. An employee cannot simply take a grievance to Fair Work because they're unhappy. However, if there is a genuine underpayment, breach of Award, or they have been dismissed, they have real options.
Is it illegal to retaliate against an employee who threatens Fair Work?
Yes. Taking adverse action against an employee because they have exercised or intend to exercise a workplace right — including complaining to Fair Work — is a serious breach of the general protections provisions of the Fair Work Act. Adverse action includes dismissal, demotion, reducing hours, and changing rosters to disadvantage them.
What is a general protections claim and how serious is it?
A general protections claim is made when an employer takes adverse action against an employee for exercising a workplace right. Unlike unfair dismissal, there is no minimum employment period and no cap on compensation. These claims are taken very seriously by the Fair Work Commission and the Federal Court.
Should I try to resolve the issue before they lodge a claim?
In most cases, yes — if the complaint has merit. Rectifying a genuine underpayment or breach quickly and in good faith is far less costly than a formal claim. However, do not make payments under pressure without understanding your obligations — get proper advice first.
What if the threat is just a bluff?
Treat it seriously regardless. A threat to go to Fair Work activates the general protections provisions immediately — meaning any adverse action from that point onward can be challenged as retaliatory. Whether or not they follow through, your conduct after the threat is what matters.

This is one of the most common — and most misunderstood — risk moments in hospitality HR. Most claims don't come from what the employee did. They come from how the employer responded.

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