Employment Law FAQs

This occurs in circumstances where an employer commits a certain act with the intention of causing a deterioration in the employee’s situation, and the act achieves that deterioration. An example of this might be that because an employee complains about the workplace being unsafe for them, an employer finds a reason to issue them with a written warning. The written warning results in a less secure employment for that employee as opposed to someone that has not been issued with a written warning.

An employer discriminates against an employee, if either directly or indirectly, and because of an attribute held by an employee, that employee is treated less favourably than other employees who had acted in the same way. Such an attribute may include things such as the employee’s age, race, disability, or sexual preference.

Injuring employment covers a number of incidents, such as a reduction in pay or rank, or treating someone differently than they ordinarily would be treated which has injured their employment in some way. An example of this might be where an employer transfers an employee to another location a large distance away because the employee had complained about their entitlements. The additional commute time may be deemed to have injured the person’s employment.

If a person such as an employee believes that adverse action has been taken against them by someone such as an employer, in breach of the general protections, they can make a general protections claim against the employer. Depending on the facts and circumstances of the matter, a general protections claim can be lodged in the Fair Work Commission, the Federal Circuit Court, or the Federal Court.

If a general protections claim involves dismissal, the claim must first be made in the Fair Work Commission. A person bringing the general protections claim has 21 days to issue a claim in the Fair Work Commission, calculated from the day after the dismissal took effect.

If a general protections claim does not involve dismissal, a person bringing the claim can either lodge a claim with the Fair Work Commission, or issue court proceedings in the Federal Circuit Court or Federal Court. When a general protections claim does not involve dismissal, a claim can only be dealt with at a Fair Work Commission conference if both parties agree. Further information relating to Fair Work Commission applications, and copies of relevant application forms can be found on the Fair Work Commission website: https://www.fwc.gov.au/disputes-at-work/how-the-commission-works/lodge-an-application

When faced with a general protections claim, an employer is required to lodge a response. The content of the response will depend on the facts and circumstances of the matter. To defend a general protections claim, the employer will need to show that adverse action was not taken against an employee because of a reason protected under a general protection. Further information relating to responding to a Fair Work Commission claim, and copies of response forms can be found on the Fair Work Commission website: https://www.fwc.gov.au/disputes-at-work/how-the-commission-works/respond-to-an-application

When an application is lodged with the Fair Work Commission, the Fair Work Commission will provide a copy of the application to the respondent, and inform the respondent of the date for responding to the claim, and the date of the Fair Work Commission conference.

A general protections claim in the Fair Work Commission will commence with the lodging of an application. The respondent is required to lodge a response to the allegations and the matter will proceed to a conference with a Fair Work Commissioner. The Commissioner’s role is to facilitate a resolution between the parties; it is not a decision maker. If the general protections claim resolves during the conference, a deed of settlement will be drawn up setting out the agreement between the parties. If a resolution is not reached, the person bringing the claim will be provided with a certificate confirming that the parties attempted alternate dispute resolution but the matter was not capable of being resolved (the certificate).

If the general protections claim involves dismissal, upon agreement by both parties the matter can proceed to a Fair Work Commission hearing at a later date. To commence this procedure, an application must be made to the Fair Work Commission within 14 days of being provided with the certificate. Alternatively, a claim can be lodged in the relevant court. A court application must be lodged within 14 days of the certificate being provided. If the claim does not involve dismissal, an application can be made to the relevant court for the court’s determination. The 14 day time frame does not apply to a general protections claim not involving dismissal.

The Federal Circuit Court and Federal Court can make orders such as orders for reinstatement, injunctions, compensation (including for hurt and humiliation), or monetary penalties. The Fair Work Commission can make orders for reinstatement, compensation, lost remuneration, and maintaining continuity of employment and period of service.

The facts and circumstances of a claim will dictate whether a general protections claim or unfair dismissal claim is made. There are benefits to a general protections claim in terms of the remedies available, such as compensation for hurt and humiliation and there being no cap on the compensation claimable, which is not the case in unfair dismissal claims.

The parties generally pay their own costs. The Fair Work Commission (if at a hearing) and the courts have a discretion to order that a party pays the other party's costs if the claim was made (1) vexatiously, (2) without reasonable prospect of success; or (3) with no reasonable cause.