General protections claims in the Federal Circuit Court

If your general protections complaint is about your dismissal, you must start your claim in the Fair Work Commission (“the Commission”). The Commission will conduct a mediation between you and your former employer and if no agreement is reached, it will issue a certificate which will let you go to court if you want to continue. There is also the option at this stage of asking the other side to agree to the Commission resolving the dispute by arbitration (see the Commission’s website for further guidance on consent arbitration).

If your general protections complaint is not about dismissal from work, you can still start your claim in the Commission and undertake mediation, but it is not mandatory. You could choose to start your claim directly in the court.

You should note that the acceptance and conciliation of a complaint by the Commission does not necessarily mean that the complaint has a good chance of succeeding. Going to court is time consuming and if you don’t have a good case but go to court anyway, you may be ordered to pay the other party’s legal costs, which can be very high. Therefore, before you go to court you should think about:

• Whether the general protections regime applies to you; and
• Whether you have the evidence to prove your cause of action.

For information about general protections claims please see the Commission’s factsheets on general protection. For more detailed information, you may find the Commission’s General Protections Benchbook useful.

Time limits

When a general protections complaint about dismissal from work is terminated by the Commission, a certificate stating that the dispute could not be resolved is sent to both parties. If you want to take your complaint further, you will need to lodge your claim with the court within 14 days of the date of that certificate (not the date you received the certificate).

A general protections complaint that is not about dismissal from work needs to be made to the FCC within 6 years of the date that the adverse action was taken against you.

How to apply

To apply to the court you will need to file and serve:

1. Application – Fair Work Division; and
2. The appropriate claim form.

Which claim form you will need to complete will depend on whether your complaint is about a dismissal.

• If you have been dismissed, you should complete a Form 2 – Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection.
• If you have not been dismissed, or your complaint is not about your dismissal, you will need to complete a Form 4 – Claim under the Fair Work Act 2009 alleging contravention of a general protection.

Application – Fair Work Division

Filling out the Application is a straight forward process – you simply need to tick the boxes that apply to your situation. The following should be noted for general protection claims:

• You are commencing proceedings under the Fair Work Act 2009 (Cth).
• The small claims procedure is not available for general protection claims.
• Under “Final orders” and “Grounds of application” tick the first box to indicate that the order and grounds are set out in the claim form.
• Take care to identify the Respondent correctly. This should usually be the legal entity who is/was your employer, not the manager or another employee of the business. The best place to find this information is on your payslip.

The Application also provides room for you to ask for interlocutory, interim or procedural orders. These are orders that you want the court to make straight away, before deciding your overall claim. These types of orders may include an injunction preventing your employer from changing any conditions of your employment until the claim is decided or an order granting you an extension of time to come to court, if you are starting your claim after the relevant time limit.

Claim Form

You will also need to complete the appropriate claim form as set out above.

Under Part G of the relevant claim form, you will need to set out the factual basis for your claim (that is, you will need to list the facts that demonstrate you have a cause of action. The purpose of this section is to tell the court your story and explain why you should get the orders you are asking for. Try to be as clear and concise as possible and relate the facts without emotion or personal comment.

The facts you will need to include will vary depending on which section of the Act you allege that your employer has contravened (your cause of action).

For example, for a claim under section 340 of the Act it will be necessary to include details of:

• your employment (when you were employed, in what position and what your entitlements were);
• the circumstances that demonstrate you exercised a work place right (what did you do? What legislation, policy or other document gave you that right? Who knew about it?);
• the actions your employer took which you say breached the requirements of the Act (e.g. dismissing you or reducing your hours); and
• facts that outline the damage you have suffered as a result.

Under Part H of the claim form for dismissal disputes (Form 2) and Part I of the claim form for non-dismissal disputes (Form 4), you will need to consider what type of orders you would like the court to make. If you decide to claim compensation, it is important that you consider what evidence you have of the loss and damage you say you have suffered.

For example, if you claim compensation for loss of earning capacity where you were dismissed, you would need evidence of what you would have been paid if your employment continued, what steps you have taken to find alternative employment or, if you have not taken such steps, medical evidence to show that you are not capable of doing so.

You will also need to attach to your claim form any certificate provided to you by the Commission when it terminated your complaint.

Filing and service of documents

Your Application and Claim forms will both need to be filed (lodged) with the court. You can file your documents online or in person at the Federal Circuit Court Registry.

There will be a filing fee payable to lodge your application. In certain circumstances you can apply for a waiver of this fee. See LawRight’s factsheet Fee waiver guide – Federal Circuit Court for more information.

A sealed copy (which is a copy stamped by the court) will then need to be personally served on all the people you names as Respondents at least 7 days before the first court date.

For an individual, personal service means that the document must be taken to the person, the person must be identified as the person named on the document, and the document handed to them. If the person refuses to take the document, the person serving it may put the document down in the presence of the person to be served and tell the person what the document is.

For a corporation, personal service requires you to go to the registered office of the corporation and to leave a copy of the documents with a person in the service of that corporation. The registered office of a corporation can be different from the company’s principal place of business. You should obtain a current company extract from the Australian Securities and Investment Commission which will show the company’s registered address.

Alternatively for a corporation personal service can be effected by any of the means set out in section 109X of the Corporations Act 2001 (Cth).

If you are not comfortable serving the respondents yourself, you can get a bailiff of the court or a process server to do it for you for a fee.

Progress of proceedings

When you file your documents, you will be given a time and date for the first hearing of your Application, which will be a directions hearing. At the directions hearing, the court will give you and the respondents a time line to complete all the necessary documents and meetings needed to get the proceedings ready for a trial. Throughout the proceeding you can expect:

• To be served with a Response from the respondent/s or a Notice of Address for Service.
• To be required to file and serve affidavit material which will contain your evidence and that of your witnesses.
• To receive affidavit material from any respondents.
• To attend a mediation.
• To attend a final hearing at which all your witnesses must be present to be cross-examined.