The Fair Work Act 2009 (Cth) (‘the Act’) is a national law that protects you from discrimination on certain grounds. If you were fired (or forced to resign) because you exercised your right to file a bullying complaint, you may be able to bring a claim against your former employer under “general protections” laws. This article will outline what these “general protections are, when and how you can make a claim and the consequences of doing so.
What Are The “General Protections” Laws?
Under the Act, an “adverse action” (including termination) cannot be taken against you if you exercise, or try to exercise, a workplace right. You are protected from adverse actions from the moment you start your job.
If your employer fires you, and you think it is because you made a bullying complaint (or indicated that you would make a bullying complaint), you can make a claim in the Fair Work Commission (“Commission”).
The bullying complaint does not need to be the only reason why your employer fired you. If the complaint even contributed to your employer’s decision, they could be in trouble for breaching employment laws.
Can I Bring a Claim?
You can bring a “general protections” claim if you were forced to resign or terminated, and you think it was because you exercised a workplace right. On the flip side, if your employer fired you because of your poor performance, or any other lawful dismissal reason, this is unlikely to be a solid basis for bringing a claim.
You gain this protection from the moment you start employment. That means you can bring a claim, even if your employer dismissed you during your probationary period.
You must also have been working at a “constitutionally-covered business”, such as a proprietary limited company or a Commonwealth authority. If a state government department or a sole trader employed you, it is best to get specific advice. These bodies don’t fall into this category.
You don’t need to be a full-time or permanent employee to be able to bring a claim. For example, the Act also protects independent contractors and labour-hire workers. On the other hand, volunteers are among those individuals who do not have “general protections” rights if their employer dismisses them.
How Do I Make a Claim?
You have 21 calendar days from when you are dismissed to start a case in the Commission. This time-limit is important. If you do not make an application within 21 days of your employment ending, you must prove that there were exceptional circumstances to get an extension. The Commission will only grant an extension after it hears a formal hearing.
To start a claim, you must use Form F8 – “Application for the Commission to Deal with a General Protections Dispute”, and pay an application fee of $69.60.
What Happens Next?
The Commission will serve your former employer with a copy of your application, and give them seven days to respond. The Commission will also give you a copy of the response, along with any supporting documents.
There will first be a telephone conciliation. If this fails, the Commission may or may not schedule a private conference to try and reach a resolution.
If the conference is unsuccessful, the Commission may arrange an arbitration. Arbitrations can only happen if both you and your former employer agree to participate in it.
You can only go to the Federal Circuit Court or Federal Court after the Commission has issued a certificate (essentially saying the case hasn’t been settled). You can start proceedings within 14 days from the date of the certificate.
How Will My Case Be Decided?
The Commission will look at why you were fired (or forced to resign), by considering all the facts surrounding your departure. The Commission will consider all the evidence, balance your evidence against the evidence of your former employer, and decide which version of the facts is most likely.
If the Commission accepts that your employer fired you, but it wasn’t because you made a bullying complaint, they will dismiss your application. In situations where there were various factors around why your employer fired you, the complaint must be a “substantial and operative” reason.
If you believe you were fired or forced to resign because you exercised a workplace right (such as making a bullying complaint), get in touch with our employment lawyers as soon as possible. We will need to provide advice before the 21-day time limit has expired. We can also give you information on your options and prospects of seeking an extension to lodge an application.