Introduction Answer these questions to know if you’re eligible to make a general protections dismissal application. Content Are you eligible for this application? Not sure – check eligibility Introduction Before you can make a general protections dismissal application, you must meet the eligibility requirements. Take the quiz to check if you are eligible for the Commission to deal with the dispute. This information is not a substitute for independent professional advice and visitors to this site should obtain any appropriate professional advice relevant to their particular circumstances. Are you covered by the general protections laws? Yes No Not sure – what are general protections? Not sure – who is covered by the general protections laws? q1r2 If you are not covered by the general protections laws, the Fair Work Commission cannot deal with a general protections dispute in your circumstances. You may be eligible to make an unlawful termination application. The Unlawful termination page provides information about who may make an application under the unlawful termination laws. There may also be applications you can make under state legislation. Contact the industrial relations tribunal in your state for information about what options may be open to you. Contact details for state industrial relations tribunals appear on the Related sites page. q1r3 For more information on general protections dismissals, including information relating to a prospective employee, an independent contractor or a person who has entered into a contract for services, go to the General protections dismissal page. q1r4 General protections laws provide protection from a range of actions taken by, or that affect (or that could or are intended to affect, or are threatened to affect) constitutionally-covered entities, employers in the Australian Capital Territory or Northern Territory, or other trade or commerce employers. They also protect from actions taken in a Territory or a Commonwealth place. All national system employees are covered by the general protections laws. Employees not covered by the general protections dismissal laws include: state government employees in New South Wales, Queensland, Western Australia, South Australia and Tasmania local government employees in New South Wales, Queensland and South Australia people employed by non-constitutional corporations in Western Australia (for example, employees of sole traders, partnerships and trusts). If you are not covered by the general protections laws, you may be eligible to make an unlawful termination application. The Unlawful termination page provides information about who may make an application under the unlawful termination laws. There may also be applications you can make under state legislation. Contact the industrial relations tribunal in your state for information about what options may be open to you. Contact details for state industrial relations tribunals appear on the Related sites page. Has your employer dismissed you because you have a workplace right, have exercised a workplace right, or propose to exercise such a right? Yes No Not sure – what are workplace rights? Not sure – what is a dismissal? Not sure – general protections disputes q2r3 Workplace rights have a very broad meaning. A person has a workplace right if he or she has an entitlement under an award or agreement or a workplace law, is able to initiate a proceeding under a workplace law or is able to make a complaint or enquiry in relation to their employment. Examples of the exercise of a workplace right include: making a complaint against your employer about an alleged underpayment of wages to the Fair Work Ombudsman making an application involving your employer to the Fair Work Commission for the Commission to deal with a dispute under an enterprise agreement asking your employer whether you are being paid the correct allowances in accordance with the relevant modern award. q2r4 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 their employer did. A general protections dismissal occurs when a person is dismissed for a reason that is a protected reason in the Fair Work Act 2009. A protected reason includes the exercising or proposing to exercise a workplace right. You must have been dismissed because you exercised or proposed to exercise a workplace right for there to be a general protections dismissal. Examples of the exercise of a workplace right include: Making a complaint against your employer about an alleged underpayment of wages to the Fair Work Ombudsman Making an application involving your employer to the Fair Work Commission for the Commission to deal with a dispute under an enterprise agreement Asking your employer whether you are being paid the correct allowances in accordance with the relevant modern award. q2r5 For more information on discrimination and workplace rights, including information relating to a prospective employee, an independent contractor or a person who has entered into a contract for services, go to the General protections (unlawful actions) page. Has your employer dismissed you because you have engaged in lawful industrial activity (such as belonging to or participating in a union), including refusing to participate in any industrial action? Yes No Not sure – what is industrial activity? Not sure – what is a dismisal? Not sure – general protections disputes q3r3 Industrial activity covers activities associated with freedom of association including: becoming or not becoming a member or officer of an industrial association 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. Examples of the exercise of industrial activities include: becoming a member of a trade union refusing to become a member of a trade union participating in protected industrial action in support of claims relating to an enterprise agreement performing duties at your workplace as a delegate of a trade union. q3r4 A general protections dismissal occurs when a person is dismissed for a reason that is a protected reason in the Fair Work Act 2009. 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 their employer did. These protected reasons include participation or non-participation in industrial activities. You must have been dismissed because of your participation or non-participation in industrial activities for there to be a general protections dismissal. q3r5 A general protections dismissal occurs when a person is dismissed for a reason that is a protected reason in the Fair Work Act 2009. For more information on general protections dismissals, go to the General protections dismissal page. Has your employer dismissed you because of your race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer"s responsibilities, pregnancy, religion, political opinion, national extraction or social origin? Yes No Not sure – what is dismissal? Not sure – what is discrimination? Not sure – general protections disputes q4r3 A general protections dismissal occurs when a person is dismissed for a reason that is a protected reason in the Fair Work Act 2009. 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 their employer did. q4r4 Discrimination relates to a person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Examples of a contravention relating to discrimination include: you informing your employer that you are pregnant, and the employer dismissing you because of your pregnancy you disclosing to your employer that you suffer from a mental illness, and your employer dismissing you because of your mental illness your employer dismissing you from your employment because of your sexuality. However, action is not considered discrimination if the action is: taken because of the inherent requirements of the particular position in accordance with doctrines, tenets, beliefs or teachings of a particular religion or creed and taken in good faith to avoid injury to the religious susceptibilities of that religion or creed, or not unlawful under any anti-discrimination law in force in the place the action is taken. q4r5 A general protections dismissal occurs when a person is dismissed for a reason that is a protected reason in the Fair Work Act 2009. For more information on general protections dismissals, go to the General protections dismissal page. Has your employer dismissed you because you have been temporarily absent from work because of illness or injury? Yes No Not sure – general protections disputes q5r2 An employer must not dismiss an employee because they have been temporarily absent from work because of illness or injury of a kind prescribed by Regulation 3.01 of the Fair Work Regulations 2009. To be eligble to rely on this protection you must: provide a medical certificate or statutory declaration to your employer regarding the illness or injury within 24 hours after the commencement of the absence or such longer period as is reasonable in the circumstances not be absent from the workplace on for more than 3 months, or more than 3 months within a 12 month period (with the same or different illnesses or injuries) unless you are on paid personal or carers leave for the duration of your absence. q5r3 For more information on general protections, including information relating to a prospective employee, an independent contractor or a person who has entered into a contract for services, go to the General protections (unlawful actions) page. Has your employer dismissed you from your employment as an employee to re-engage you as an independent contractor? Yes No Not sure – sham contracting arrangements Not sure – general protections disputes q6r2 If none of the actions described in Question 2 to Question 6 have been taken against you, it is unlikely that you are eligible for the Fair Work Commission to deal with the dispute. q6r3 An employer must not dismiss an employee in order to engage the individual as an independent contractor to perform the same or substantially the same work they were performing as an employee. q6r4 A general protections dismissal occurs when a person is dismissed for a reason that is a protected reason in the Fair Work Act 2009. For more information on general protections dismissals, go to the General protections dismissal page. Have you been dismissed? Yes No q7r2 The general protections laws can apply to situations where a person has not been dismissed in some circumstances. If you want to make a general protections application not involving a dismissal, go to the General protections (unlawful actions) page. Here you will find the application form, details of any fees and how to lodge a completed application. The powers of the Fair Work Commission when dealing with a general protections dispute application that does not involve a dismissal rely on both parties agreeing to participate in the matter. If both parties agree to participate, the Commission will arrange a conference. If the employer does not agree to participate, you can take the matter directly to the Federal Court or the Fair Work division of the Federal Circuit Court. How long ago did your dismissal take effect? My dismissal took effect 21 days or less ago My dismissal took effect more than 21 days ago q8r1 You appear to be eligible for the Fair Work Commission to deal with your dismissal. How to make an application Download Form F8 from the General protections dismissal page. Here you will find details of any fees and how to lodge a completed application. Completed application forms can be lodged by email, facsimile, telephone, express post, or in person at one of the Fair Work Commission's offices. Note: the Fair Work Commission is a tribunal and cannot advise you whether or not to make an application. q8r2 If your dismissal took effect more than 21 days ago, your application is out of time. The Fair Work Commission may only allow an extension of time for the lodgment of your application if it is satisfied that there are exceptional circumstances. For information about exceptional circumstances, go to Lodge an application after the time limit has expired.
