This is the second of two articles that discuss General Protection claims. The previous issue spoke about what these are, this article deals with the process of lodgement. The Forms referred to are available from the Fairwork Commission site.
Lodging an application
Employees wanting to make an application for the Commission to deal with a general protection dispute involving a dismissal need to complete and lodge Form F8. This form needs to be lodged within 21 calendar days after the day the dismissal took effect.
A person wanting to make an application for the Commission to deal with a general protection dispute not involving a dismissal needs to complete and lodge Form F8C.
Responding to an application
Employers or other respondents named in the application need to lodge a response with the Commission within 7calendar days of being served with the applicant’s form.
To do this, they need to complete and lodge Form F8A with the Commission.
Process for dismissal disputes
When an application to deal with a general protections dismissal dispute is received, a Commission Member will hold a conference and assist the parties to try to reach an agreed resolution to the dispute.
If the dispute is not resolved in a conference, the applicant and the respondent can agree to have the dispute arbitrated and therefore finally determined, by the Commission subject to any appeal rights. This is called consent arbitration.
If one or both of the parties doesn’t agree to participate in consent arbitration, the applicant can choose to make a separate application to a court that can deal with general protections disputes.
Process for non-dismissal disputes
In non-dismissal disputes, a Commission Member will have a conference and assist the parties to try to reach an agreed resolution. The conference is voluntary, and will only be held if both parties agree to attend.
If the conference doesn’t go ahead because one of the parties doesn’t agree to participate, or if a conference is held but a resolution isn’t reached, the applicant can choose to make a separate application to one of the courts that can deal with general protections disputes.
An applicant can apply to the Federal Court of Australia or the Federal Circuit Court of Australia (the Courts) to deal with their general protections dispute if:
• the dispute relates to action taken other than a dismissal, and the respondent did not agree to participate in a conference at the Commission;
• the dispute was not resolved at a conference at the Commission, and one or both of the parties did not consent to the matter being resolved through arbitration at the Commission, or
• the application for a dismissal dispute includes an application for an interim injunction.
Applications to a court about a general protections dismissal dispute must be made within 14 calendar days after the day the Commission has issued its certificate that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful.
General protections applications where the employee is still working for the employer don’t need to have been heard at the Commission in order to progress to a Court.
In the event that a person is found by one of these Courts to have breached the general protections provisions of the Fair Work Act, the Courts have the power to make any order they consider appropriate, including an order to:
• issue a monetary penalty;
• issue an injunction;
• make an order for reinstatement;
• make an order for compensation.
However the Courts may only make an order against a party for the payment of legal costs where the party has instituted the proceedings vexatiously or without reasonable cause, or the party’s unreasonable act or omission caused the other party to incur costs, or where the party unreasonably refused to participate in a matter before the Commission which arose from the same facts as the proceedings.
As part of the general protections application process, parties may choose to obtain their own independent legal advice.
Do you have further questions relating to General Protection? Call us to discuss.