A general protections application can be made whether or not you have been dismissed. Below is what the process usually involves when making a general protections application involving dismissal.
An employee makes a general protections application within 21 days after being dismissed from their employment (please note that this might be earlier than the last stated day of employment). The correct form to be used for the application is called a Form F8.
A copy of the application is sent by the FWC to the employer.
The employer responds to the application within 7 days, explaining why they believe that they are not in breach of the general protections, and raising any objection they have against the application on “jurisdictional grounds”. The correct form to be used to respond to the application is called a Form F8A and can be accompanied by any supporting material including warning letters or performance reviews.
After receiving the application, the FWC organises a conference with a staff conciliator to guide discussions between the parties. The FWC will organise the date and time for the conference, which is usually held by phone.
However, if an objection has been raised by an employer, they may ask for a Commission Member to decide the objection before the conference occurs. If so, a hearing will be scheduled to decide the objection.
If the conference goes ahead and the parties resolve the dispute during the conference, the application will usually be closed by the FWC.
No resolution after conference
If the parties do not resolve the dispute during the conference, a Commission Member will issue a certificate to the employer and employee, confirming that the parties could not resolve the dispute. If the Commission Member thinks the employee does not have a reasonable prospect of success at arbitration or in court, they must also say that in the certificate.
Once the employee has the certificate, they have 14 days to decide whether they want to apply for arbitration (which requires the employer to agree), or they want to take the case to a federal court. Costs are not usually awarded in these matters if parties have acted reasonably.
If both parties agree to continue to arbitration, they must both tell the FWC using a form called a Form F8B. This must be done by both parties within 14 days of the Commission Member issuing the certificate.
The FWC will then tell both parties the time, date, and location for the arbitration to occur. Please also note: an employee cannot apply to a federal court when they have agreed to arbitration.
Going to Court
There are two courts that can deal with general protections claims, being the Federal Circuit and Family Court of Australia, and the Federal Court of Australia. The court process can involve high filing fees, legal costs, and the prospect of having to pay the other side’s legal costs, if you are unsuccessful.
Getting legal advice
If you think you have been dismissed for a prohibited or unlawful reason, you should seek legal advice.
For all employment law enquiries, please contact us on (07) 5574 0111 or contact Peter Muller at email@example.com or Gul-e-Raana Rizvi at grizvi@QBMLaw.com.au.