Fair Work Commission

General protections dismissal applications

There are two types of general protections disputes that can be dealt with by the Commission:

• general protections dismissal disputes
• general protections non-dismissal disputes.

General protections dismissal disputes cannot be heard by a court without the parties first having a conference at the Commission.

There are strict timeframes and lodgment requirements that apply. See Guide 2 – Making a general protections application (PDF), for more information.

Responding to a general protections application

The respondent to the application, usually the employer, will need to lodge a response to the application with the Commission.

There are strict timeframes and lodgment requirements that apply. See Guide 3 – Responding to a general protections application (PDF), for more information.

Dealing with a general protections dismissal application

If a dispute involves a dismissal, the Commission must convene a private conference to deal with the dismissal.

Conferences for general protections matters are usually private, and can be held face-to-face or by telephone. Many parties choose to represent themselves in Commission proceedings. It is not necessary for a party before the Commission to be represented by a lawyer or paid agent, though they can ask for permission to be represented.

For information about the conference process see:

• Guide 4A – Initial conference with a staff conciliator (dismissal disputes only)
• Guide 4B – Conference before a Commission Member (all general protections disputes)

What happens if a matter isn't resolved in a conference?

If a dispute involving a dismissal is not resolved during the conference, and the Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then the Commission will issue the parties a certificate to that effect.

The parties can ask the Commission to arbitrate and therefore finally determine the matter. The Commission can only arbitrate where both parties agree and notify the Commission of their consent.

See Guide 5 – The consent arbitration process (PDF), for more information about arbitration.

If the parties do not consent to the Commission arbitrating the dispute, an applicant can choose to progress their matter by making a separate application to the Federal Circuit Court or the Federal Court. If the Commission considers that an application to either court would not have a reasonable prospect of success, it must advise the parties accordingly.

See Guide 6 – General protections applications not resolved at the Commission (PDF), for information about what happens next.

What is the role of the courts?

The Federal Circuit Court and the Federal Court have the power to enforce general protections laws. In the event that a person is found to have breached a general protections law, these courts have the power to:

• issue a fine (known as a pecuniary penalty)
• make an order for reinstatement
• make an order awarding compensation for loss
• grant an injunction or interim injunction
• award costs.

Unlawful termination

If an employee that is not a national system employee has been dismissed and alleges their dismissal was in contravention of s.772 of the Fair Work Act 2009, they may make an unlawful termination application to the Commission.

Note: an employee can only make an unlawful termination application if they are not eligible to make a general protections application.