General protections dismissal

What are general protections? 

Employees have rights called 'general protections'. These include the right:

• to correct pay, leave and other entitlements
• to be in a union and take part in union activity (or to choose not to)
• to take time off work if you are sick or injured
• to not to be discriminated against 
• to make a complaint or ask questions about workplace conditions
• to benefit from workplace laws and agreements (like awards, enterprise agreements, or workplace safety laws)
• to disconnect outside work hours.

If you were dismissed from your job for using one of these rights, you may be able to make a general protections dismissal claim.

For more information, see What are general protections?

Who can apply?

You can apply if the laws about general protections cover you. Most people that work for private businesses are covered. If you are a public servant employed by a State or local government, these laws may not cover you.

If you're not covered you might still have other options. You should get  legal advice to help you work out what is best for you.

Are you covered by general protections?

If you are an employee working in NSW, general protections laws usually cover you unless you are employed by:

• the NSW government
• a local council, or 
• a NSW state government owned corporation.

Some independent contractors are also covered in certain situations. For more information see Independent contractors on the Fair Work Ombudsman website.  
 
 Laws about general protections in the workplace and who they apply to are complicated. If you are not sure whether they cover you, you should get legal advice. 
 
 Even if these laws don't apply to you, you may still have rights under other laws.

You should get legal advice if you have been dismissed or are having problems at work. You may have other options, such as:

• an unfair dismissal claim if you were dismissed (for more information, see Unfair dismissal)
• a discrimination claim (if you have been discriminated against at work)
• a bullying claim (if you have not been dismissed but are experiencing workplace bullying).

Time limits

You must lodge our general protections dismissal with the Fair Work Commission (the Commission) within 21 days of the date you were dismissed.

You need to make sure that the Commission receives your application within this time.

The day you were dismissed will usually be either the last day that you worked or when you were told you were dismissed (whichever is later). If you are not sure you should get legal advice urgently.

 If your deadline falls on a Saturday, Sunday or public holiday you can lodge your application on the next business day. Make sure that the Commission receives your application by that day. 

For example, if the last day for applying is Sunday 10 June and Monday 11 June is a public holiday, you must lodge by Tuesday 12 June. You can also file online using the Commission’s eFiling system before midnight on the last day.

The Commission may accept late applications but usually only in rare cases.

If you weren't dismissed but your employer broke a general protection, you can ask for an order within six years. However, it's best to apply as soon as possible and get legal advice straight away.

Late applications

The Commission only accepts late applications in very limited circumstances. For example, where your general protections dismissal application was late because:  

• you were in hospital
• your lawyer gave you wrong advice
• your lawyer made a mistake
• the Commission made a mistake. 

The Commission looks at the full circumstances of your case when deciding whether to accept your late application. This include: 

• how strong your case is
• whether you disputed the dismissal
• whether it would be fair to give you an extension (considering other people that have been in a similar position to you) 
• whether it would be unfair to your employer.

 If more than 21 days have passed since you were dismissed, you should get legal advice urgently.

For a handy guide to all the requirements you have to meet to make a general protections dismissal application, see  Checklist - Making a general protections dismissal application. 

How to apply

If you were dismissed from your job and you think your employer broke general protections laws, you can apply to the Fair Work Commission (the Commission) to try and resolve your dispute. 

You must make a general protections dismissal application to the Commission within 21 days of the date you were dismissed.

You may be able to make a number of different claims against your employer. Before you make any claims, you should get legal advice to help you work out what is the right option for you.

Steps to apply:

• Apply online using the Fair Work Commission Online Lodgment Service or download the form
  
• fill in the form
• pay an application fee or apply to waive (cancel) the fee if you can't afford it
• give the form to your nearest Fair Work Commission office.

 Step by step guide: Making an application for general protections dismissal

What happens next? 

• Once the Commission gets your application, they will serve it on (give it to) your employer.
• Your employer has seven days to respond after receiving your application. Your employer must also complete a response form, file it with the Commission and give you a copy. 
• After you file a general protections dismissal application at the Commission, the Commission arranges a conciliation conference to help you and your employer settle the dispute. You will be sent a notice of listing with the date, time and location of the conference.  
  

The employer's response 

After you apply, the Fair Work Commission (the Commission) will notify the employer that you have made a general protections dismissal application.

The Commission will send the employer:

• a copy of your application
  
• Form F8A - Employer's Response to Application for the Commission to Deal with a General Protections Dispute, and
• The Commission Guide to General Protections.

The case is then allocated to a member of the Commission, Both you and the employer, will get a notice of listing. This will have the date, time and location of the mediation or conciliation conference, and any other instructions that might apply.

The employer must respond to your application within seven days by filling in form F8A and attaching any supporting documents. The form must include:

• the employer's contact details
• the contact details of their representative (if they have one)
• whether or not they agree with your application and if not, the reasons why they do not agree
• a response to your claim that they have broken the law
• an explanation for why you were dismissed.

Once the form is completed, your employer must file the form with the Commission and serve (give) a copy to you.

The employer can serve a copy on you by:

• using the Fair Work Commission's Online Lodgment Service to email the documents
• sending it by express post to the address you put on your application
• sending it by registered post to the address you put on your application
• emailing it if you included an email address on your application, or
• leaving it with you or any person apparently over the age of 15 years, at your home.

If you have a nominated representative, your employer can serve the documents on them.

If you don't get a copy of the response you should call the Commission.

 If your employer doesn't file a form F8A with the Commission, the conciliation that has been listed for your matter will still go ahead at the scheduled time.

Sometimes employers raise something called a 'jurisdictional objection'. This is an argument about whether the Commission has the legal power to hear the application. The Commission Member may hold a jurisdictional hearing to decide the objection before a conference.

For an example of an employer's response, see:

• Sample: Form F8A - Response to general protections application (PDF, 339KB).

Conciliation

After you file a general protections dismissal application the Fair Work Commission will arrange a conference with you and your employer to try and settle the dispute. 

Conciliation (or mediation) is a way of solving a problem without a formal hearing. A member of the Commission usually meets with you and your employer face to face and helps you to talk and come to an agreement. If you can't go the conciliation in person, you may be able to organise to participate by telephone. 

You'll get notice of listing with the date, time and location of the conference. The notice will also say whether your conference is face-to-face or on the telephone.

The conference may be a mediation or conciliation. Cases are usually listed for conciliation and the information on this section focuses on this. Mediation and conciliation are very similar and the preparation and process is the same for both.

Conciliation is confidential and it is not recorded. Anything that is talked about at conciliation should not be discussed with anyone else after the conciliation and can't be raised at a hearing later on.

The Commission member can't make a decision or order in a general protections case. They can suggest ways that you could settle your dispute and point out any weaknesses in your case, but they cannot make a decision or order.

You should prepare for the conciliation (or mediation) so that you get the most out of it. Think about what you want out of the conciliation. The more prepared you are, the easier it will be to talk about your dispute.

For more information see:

Step by step guide: Preparing for conciliation

Step by step guide: Going to conciliation

After conciliation

If you reach an agreement with your employer you may be asked to sign a settlement agreement.

If you don't agree, the Commission gives you a certificate confirming that you went to the mediation or conciliation conference and couldn't settle the case.

If you want to continue with your case, you have 14 days to:

• apply for an arbitration hearing with the Commission if both sides agree, or
• apply Federal Court of Australia or Federal Circuit and Family Court of Australia.

For more information, see Step by step guide: After conciliation

For more information, see Arbitration or Going to Federal Circuit and Family Court of Australia.

Arbitration

 If you and your employer agree, the Fair Work Commission can deal with a dispute through arbitration.  You must apply within 14 days of getting the certificate, confirming that you were not able to settle the case during conciliation. 

At arbitration, both sides will be given a chance to present their evidence including any witnesses.

For help with planning and presenting your case, see Arbitration.

After arbitration, the Commission then decides if your dismissal breached general protections and can order:  

• that you be reinstated to your job 

• that you are paid compensation. 

The Commission can’t order your employer to write you a reference or pay you other money that they owe you. Orders are only about your dismissal. For more information about what to do if your employer hasn’t paid you your wages and entitlements, see Wages and entitlements.

If you lose the case, you may be able to appeal. 

For more information, see  After the case below.

Going to court

If you made a general protections dismissal application to the Fair Work Commission (the Commission) but you and your employer couldn't settle the case, you may be able to apply to the Federal Circuit and Family Court of Australia.

The Court can decide whether your employer broke the law when they dismissed you. The Court can make orders about compensation and reinstatement, as well as other orders, for example fining your employer.

You apply to the Commission first, before you can go to the Federal Circuit and Family Court of Australia for general protections dismissal. 

To find out about going to the Federal Circuit and Family Court of Australia, including how to apply, what to expect at hearings, and the types of decisions that the Court can make, see Going to the Federal Circuit and Family Court of Australia

After the case

If you settled the case with your employer, they may have agreed to reinstate you (give you back your job) or pay you compensation. If your employer doesn't follow an agreement or an order made by the Fair Work Commission then you can take steps to enforce it. 

You may be able to apply to the Federal Court of Australia or the Federal Circuit and Family Court. These Courts can order that compensation be paid to you for any loss you have suffered and fine your employer.

If your employer does not follow an order made by the Federal Circuit and Family Court of Australia to reinstate you, they may be in contempt of court. It is possible for the court to punish parties that are in contempt of court. 

If the court has made orders for your employer to pay you money and they have not done so, you can enforce the orders.

If you are unhappy with the decision of the Fair Work Commission, you may be able to apply for leave (permission) to appeal within 21 days of the date of the decision.

If you are unhappy with the decision of the court, you may be able to appeal to the Federal Court of Australia within 28 days.

For more information, see After the case -general protections dismissal.