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General protections dismissal
Table of contents
adjournment
To end proceedings or to suspend them to another time or place.
appeal
To request that a decision of a single member of the Commission be reviewed by a Full Bench to determine if the decision made is consistent with the Fair Work Act 2009. An appeal can only be made on the grounds that an error of law or fact has been made. A person must seek the permission of the Commission to lodge an appeal by lodging a Form F7—Notice of Appeal.
bullying at work
Bullying at work, as defined by the Fair Work Act 2009, occurs when:
- a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work, and
- the behaviour creates a risk to health and safety.
Bullying does not include reasonable management action carried out in a reasonable manner.
bullying policy
A formal procedure outlining the processes used, including disciplinary measures, to resolve bullying in the workplace. A policy would normally include definitions of bullying, a worker's responsibility in relation to bullying and the step by step process that should be adopted when bullying is reported.
code of conduct
A set of rules and responsibilities that govern an organisation. A code of conduct generally sets out appropriate and inappropriate behaviour of employees within an organisation.
Commission
Abbreviation for Fair Work Commission.
Commonwealth
Refers to the Commonwealth government or an Australian territory.
conference
A private proceeding conducted by a Fair Work Commission Member.
constitutionally covered business
A constitutionally covered business is:
- a proprietary limited company
- a foreign corporation
- a trading or financial corporation formed within the limits of the Commonwealth
- the Commonwealth
- the Commonwealth authority
- a body corporate incorporated in a territory
- a business or organisation conducted principally in a territory or Commonwealth place.
It does not include sole traders, partnerships, some state government employees, corporations whose main activity is not trading or financial.
decision
A judgment or conclusion reached after considering the facts and law. A decision in relation to a matter before the Commission can include the names of the parties and will generally outline the basis for the application, comment on the evidence provided and include the judgment of the Commission in relation to the matter. A decision can be made by a single member or a Full Bench of the Commission. It is legally enforceable.
directions
Instructions given to the parties by the Commission that set out a timetable in accordance with which they must file in the Commission and serve on each other an outline of submissions, witness statements and any supporting documents.
evidence
Information which tends to prove or disprove the existence of particular belief, fact or proposition. Certain evidence may or may not be accepted by the Commission, however the Commission is not bound the normal rules of evidence. Evidence is usually contained within or attached to a witness statement or provided verbally by a witness in a hearing.
Fair Work Act 2009
The principal Commonwealth law governing Australia's workplace relations system. Go to the Fair Work Act 2009.
Fair Work Commission
Australia's independent, national workplace relations tribunal, established under the Fair Work Act 2009, from July 2009 to December 2012. Fair Work Australia assumed the functions of the Australian Industrial Relations Commission, and the Australian Fair Pay Commission and the agreement-making function of the Workplace Authority. Fair Work Australia was renamed the Fair Work Commission on 1 January 2013.
Full Bench
A Full Bench of the Fair Work Commission is convened by the Fair Work Commission President and comprises at least three Fair Work Commission Members, one of whom must be a Deputy President. Full Benches are convened to hear appeals, matters of significant national interest and various other matters specifically provided for in the Fair Work Act 2009.
harassment
Unwanted and offensive conduct or behaviour by a person or persons directed towards another person based on an attribute such as a person’s age, gender, race, religion or a disability. Harassment can be physical or psychological.
hearing
A public proceeding conducted by a Fair Work Commission Member. A hearing is generally more formal than a conference, and may be held if the matter can't be resolved at mediation, conciliation or conference.
jurisdiction
The scope of the Commission’s power and what the Commission can and cannot do. The power of the Commission to deal with matters is contained in legislation. The Commission can only deal with matters for which it has been given power by the Commonwealth Parliament.
jurisdictional objection
An objection to an application on the basis that the Fair Work Commission does not have jurisdiction to deal with the matter. A jurisdictional objection is not simply that the respondent thinks the applicant's case has no merit.
matter
A case or legal proceeding before the Commission.
mediation
An informal, confidential and voluntary process. It is one of the processes used by the Commission to facilitate the resolution of a grievance or a dispute between parties by helping them reach an agreement.
Member
A person appointed by the Governor-General to decide matters at the Commission. A Member may be the President, a Vice President, a Deputy President or a Commissioner.
non-constitutional corporation
An entity that is not a constitutional corporation. The following are not constitutional corporations:
- sole traders
- partnerships
- some state government bodies
- corporations whose activities do not include significant trading or financial functions (e.g. some charities).
order
An order is a ruling made by a Fair Work Commission Member after he or she hears your case. Once an order has been made, anyone bound by that order must follow it.
outcome
The end result of an application made to the Commission.
outline of submissions
A written document that clearly sets out the key elements of a case. All facts, information and evidence that you wish to bring to the attention of the Commission should be included in your outline of submissions.
partnership
An organisation in which two or more persons carry on a business together and it is not a constitutional corporation as defined.
party
A person or organisation involved in a matter before the Commission. A party is generally known as either an applicant or a respondent.
principal
A person or business that has entered into a contract for services with an independent contractor.
private enterprise
A business owned and operated by private individuals for profit, instead of by a government or its agencies.
procedural fairness
When persons are treated equally or fairly before the law (also known as due process). For example, procedural fairness occurs when both parties to a dispute have an opportunity to be heard or to defend themselves.
pty ltd
A proprietary limited company. A constitutionally covered business.
reasonable management action
In relation to an anti-bullying application, reasonable management action is the action or behaviour of management that is considered to be carried out in a reasonable manner. Reasonable management action does not constitute workplace bullying.
Reasonable management action may include:
- performance management processes
- disciplinary action for misconduct
- informing a worker about unsatisfactory work performance or inappropriate work behaviour
- asking a worker to perform reasonable duties in keeping with their job, and
- maintaining reasonable workplace goals and standards.
In each of these examples, if they are not carried out in a reasonable manner, then they could still be considered bullying.
Rules
service/to serve
A requirement to send a copy of a document (and all supporting documents) to another party or their representative, usually within a specified period. A person’s obligation to serve documents can be met in a number of ways. The acceptable ways in which a document can be served are listed in Parts 7 and 8 of the Fair Work Commissions Rules 2013.
sole trader
An organisation in which one person is responsible for the business.
WHS
Abbreviation for work health and safety.
WHS state or territory regulator
A body established by a state or territory government which regulates WHS laws in a particular state or territory. To find contact details for the regulator in your state or territory, go to the Enquiries page.
witness statement
A person who gives evidence in relation to something they saw, heard or experienced. A witness is required to take oath or affirmation before giving evidence at a formal hearing. The witness will be examined by the party that called them and may be cross examined by the opposing party to test their evidence.
worker
In relation to an anti-bullying application, the definition of a worker is drawn from the Work Health and Safety Act 2011. A worker can include:
- an employee
- a contractor or subcontractor
- a person employed by a labour hire company who is working at a particular business or organisation
- an outworker
- an apprentice or a trainee
- a work experience student
- a volunteer.
Only people who are considered to be workers may apply for an order to stop bullying at work.
workplace
A place where a person performs work.
workplace bullying
See bullying at work.
Coronavirus (COVID-19) & general protections cases
The current coronavirus (COVID-19) situation is affecting how we deal with general protections dismissal cases.
You can still make an application during this time.
For everyone’s safety, we have closed our counters. We are no longer accepting applications in-person or by post. We ask that you:
- make an application using our online lodgment service or
- download and complete the Form F8 and send it by email or fax to your nearest Commission office.
If you’re having trouble lodging an application, please call us on 1300 799 675.
The 21 day time limit for lodgment still applies.
If you are involved in a general protections case that’s already underway, it will continue to proceed.
We are trying as hard as we can to help resolve cases as quickly as possible, but our operations have been affected along with all Australian workplaces. Because of this, you may find that your case takes longer than normal to process.
Where possible, we will deal with your case entirely by phone or videoconference. This means that you will not have to come in to the Commission.
For more detail about these changes, please read our full Coronavirus (COVID-19) updates & advice.
Introduction
A person has been dismissed from their employment when:
- their employment has been terminated at the initiative of the employer, or
- they have resigned their employment but the resignation was forced by something the employer did.
If you have been dismissed from your employment you may be able to make an application to the Fair Work Commission under either unfair dismissal or general protections dismissal laws. Applications under these laws must be received by the Fair Work Commission within 21 days of your dismissal taking effect.
To understand the key differences between these applications, and to decide whether one of these applications may be appropriate for you, see the Termination of employment page.
If eligible, you can make an application to the Fair Work Commission under either unfair dismissal or general protections dismissal laws:
- take our Unfair dismissal quiz to see if you may be eligible under the unfair dismissal laws.
- take our General protections dismissal quiz to see if you may be eligible under the general protections dismissal laws.
Workplace Advice Service
The Workplace Advice Service provides access to free legal assistance to eligible people and some small business employers who need advice about general protections dismissals and other employment-related matters.
The Service is currently available in New South Wales, Queensland, South Australia, Victoria and Western Australia.
What are general protections?
The general protections have been introduced to:
- protect workplace rights
- protect freedom of association
- provide protection from workplace discrimination, and
- provide effective relief for persons who have been discriminated against, victimised, or have experienced other unfair treatment.
A person (such as an employer), must not take any 'adverse action' against another person (such as an employee), because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.
Adverse actions that can be taken against an employee or potential employee might include:
- dismissing them
- not giving them their legal entitlements
- changing their job to their disadvantage
- treating them differently than others
- not hiring them
- offering them different (and unfair) terms and conditions, compared to other employees.
General protections benchbook
The Fair Work Commission has created a General protections benchbook which contains detailed information and links to cases setting out eligibility and the Commission process, including information on objections.
Workplace rights
Workplace rights include:
- receiving a benefit or having a role or responsibility under a workplace law (such as the Fair Work Act 2009), a workplace instrument (such as a modern award or enterprise agreement), or an order made by an industrial body (such as an order made by the Commission)
- commencing or participating in a process or proceeding under a workplace law or instrument, such as taking court action
- being able to make a complaint or inquiry about your employment.
Industrial activities
A person must not take adverse action against another person because they engaged in or proposed to engage in industrial activity (such as belonging to or participating in a union), including refusing to participate in any industrial action.
Industrial activities cover activities associated with freedom of association including:
- becoming or not becoming a member of industrial associations (e.g. unions and employer associations)
- representing or advancing the views, claims or interests of an industrial association
- taking part in protected industrial action, or
- refusing to take part in industrial action.
Protection from discrimination
An employer also must not take adverse action against an employee because of an attribute of that person, including their:
- race
- colour
- sex
- sexual orientation
- age
- physical or mental disability
- marital status
- family or carer's responsibilities
- pregnancy
- religion
- political opinion
- national extraction
- social origin.
Sham contracting arrangements
An employer must not tell an employee that they are being hired as a contractor if they are really an employee. An employer must not dismiss or threaten to dismiss an employee in order to hire them as an independent contractor doing the same or substantially the same work.
Who do general protections laws apply to?
General protections laws apply to:
- employees and prospective employees
- employers and prospective employers
- independent contractors and prospective independent contractors
- a person who has entered into or who has proposed to enter into a contract for services with an independent contractor
- an industrial association, including an officer or member of an industrial association.
General protections laws provide protection from a range of actions (explained below) taken by, or that affect (or that could or are intended to affect, or are threatened to affect) constitutionally-covered entities, employers in the ACT or Northern Territory, or other trade or commerce employers. They also protect from actions taken in a territory or a Commonwealth place.
A constitutionally covered entity can be any of the following:
- a constitutional corporation, which can either be a trading or financial corporation formed in Australia, or a foreign corporation that does business in Australia. They are often recognisable by having Proprietary Limited, Pty Ltd, Limited, Ltd, Incorporated or Inc. after their name
- the Commonwealth (ie the federal government and its departments)
- a Commonwealth authority (such as the Fair Work Commission)
- a body corporate incorporated in a territory, or
- an organisation.
Am I eligible?
Complete the General protections eligibility quiz to find out if you may be eligible for a remedy under the general protections provisions for a workplace dismissal.
What it means to me
If you've received notice from the Fair Work Commission about a general protections application relating to dismissal (ending employment), it means:
- Someone believes that you or your company ended their employment unfairly
- because they tried to, or planned to, exercise a workplace right (eg asking about their pay or working conditions), or
- for discriminatory reasons (eg based on their race, sexual orientation, age, religion, etc), or
- because they exercised, or tried to exercise, their freedom of association (eg right to join a union or to take part in protected industrial action).
- By applying to the Commission they have started a legal action against you.
- No decision has been made, or result determined yet.
- You have the right to respond to the application using the correct form/s, including outlining why you may object to the application. The Commission needs this information to progress (or, if appropriate, close) the application.
- You or your company will then be given a time and date for a conference – where a Commission Member or Commission staff conciliator will try to help both sides work out a way to resolve their dispute without the need for a more formal court hearing.
- If the dispute cannot be resolved, and both sides agree, the Commission will hold a formal hearing and make a final decision about the matter.
- If one or both sides do NOT agree that the Commission should make a decision, then the applicant may apply to the Federal Circuit Court or the Federal Court for a final decision.
If you think your employment ended unfairly (you were dismissed or your employment was terminated unfairly):
- because you tried to, or planned to, exercise a workplace right (eg asking about your pay or working conditions), or
- for discriminatory reasons (eg based on race, sexual orientation, age, religion, etc), or
- because you exercised, or tried to exercise, your freedom of association (eg right to join a union or to take part in protected industrial action).
- You can start a legal action against your employer by applying to the Fair Work Commission using the correct form and paying a fee.
- The Commission will send a copy of your application to your former employer, and they will be given the chance to respond to your application.
- You will then be given a time and date for a conference – this is where a Commission Member or Commission staff conciliator will try to help both sides work out a way to resolve their dispute without the need for a more formal court hearing.
- If the dispute cannot be resolved, and both sides agree, the Commission will hold a formal hearing and make a final decision about the matter.
- If one or both sides do NOT agree that the Commission should make a decision, then you may apply to the Federal Circuit Court or the Federal Court for a final decision.
Updated time
Last updated
26 March 2020
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