A general protections dispute can be resolved through taking action in either, and sometimes, both:
The end result will depend on whether the application is for a dismissal dispute or a non-dismissal dispute, and the willingness of the parties to resolve the matter.
A general protections dismissal dispute application starts within the Commission, unless the general protections dispute application includes an application for an interim injunction, which means that it is taken directly to Court.
In contrast, a non-dismissal dispute application will only commence with a Commission conference if both parties agree. If both parties do not agree to a conference then the matter can proceed directly to Court.
Note: An applicant in a non-dismissal dispute matter may make an application directly to the Court, an application does not need to be lodged with the Commission.
If the general protections dispute is resolved during the Commission conference, the parties should sign a ‘Terms of Settlement’ document which formalises their agreement. The Terms of Settlement is customised to reflect the wishes of the parties. It can contain details of compensation or steps to be taken, as well as issues regarding privacy or non-disparagement terms.
If the general protections dispute is not resolved during the Commission conference, and the Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then the Commission must issue a certificate to that effect.
A certificate is a Commission document which states the parties to the dispute, that the Commission conducted a conference and that the dispute could not be resolved by that process.
After conducting a conference and taking into account all of the material presented, if the Commission considers that the dispute, if taken to Court, would not have a reasonable prospect of success, the Commission must advise the parties.
This is done to ensure that the parties understand the likelihood of success if the dispute continues to a general protections court application or arbitration.
There is no specified way for this advice to be given.
If a general protections dismissal dispute is not resolved during the Commission conference, and after receiving the certificate the parties agree to the Commission resolving the dispute by arbitration, the Commission will hold a determinative conference or hearing.
At the conclusion of the arbitration process the Commission may make one or more of the following orders:
If a Commission order applies to a person, then that person must not contravene a term of the order. If the order is contravened, it can be enforced through the Courts, which may result in further penalties being applied.
Compensation is a broad concept which should not be interpreted in a narrow way.[1]
The Commission has power to make ‘an order for the payment of compensation to the person’[2] in relation to a general protections matter. The Fair Work Act 2009 does not limit the scope of the compensation as it does in relation to unfair dismissal, where an amount ordered to be paid to a person who has been unfairly dismissed ‘must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal’[3] and is otherwise limited to six months’ pay.
Compensation can include compensation for non-economic loss such as hurt, humiliation and distress.[4]
There must be a causal connection between the contravention and the loss, which is always a question of fact.[5]
Masson-Forbes v Gaetjens Real Estate Pty Ltd [2015] FWC 4329 (Wilson C, 26 June 2015).
The applicant was employed as General Manager Retirement Services. The applicant became ill and was away from work for several months. After returning to work she was provided with a performance warning. The applicant resigned from her employment indicating her resignation was to take effect on 30 January 2015. The respondent accepted the resignation but substituted 1 December 2014 as the date on which employment would end.
The applicant made a general protections application alleging she was subjected to adverse action because she had been away from work for a considerable period because of personal illness (in breach of s.340 of the Fair Work Act). She also alleged that she was subjected to adverse action because she was ‘an officer or member of an industrial association or was engaging in an industrial activity’ (in breach of s.346).
The Commission found the applicant was exercising a workplace right when she did not attend for work for reason of personal illness and also that she was an officer of an industrial association participating in a lawful activity organised by or promoted by an industrial association. The Commission held that the respondent took adverse action against the applicant through its dismissal of her by forced resignation, and the adverse action was taken because of a prohibited reason, or reasons which included a prohibited reason.
The Commission ordered compensation in the amounts of $17,451 for remuneration lost, together with $3000 for non-economic loss.
Mowle v Downing Teal Pty Ltd T/A DT Workforce [2015] FWC 3513 (Gooley DP, 27 May 2015).
The applicant was employed as a Lab Tech/Sampler and reported an injury that occurred when picking up a sample for testing. After meeting with her supervisor and area co-ordinator a week later, her employment was terminated. The applicant alleged she was dismissed because she exercised her workplace right to engage in, report and suggest occupational health and safety issues.
The respondent gave evidence that the reason for dismissal was that the applicant’s understanding of safety wasn’t adequate, and that she was a concern and a risk to herself and also to other team members. The respondent accepted that it might look like there was a connection between the applicant reporting her injury and her dismissal, but denied any link.
The Commission was prepared to accept that the applicant exercised a workplace right when she reported her injury, and found that the respondent took adverse action against applicant by dismissing her. However the Commission found, on the balance of probabilities, that the respondent did not dismiss the applicant because she exercised a workplace right.
The respondent had satisfactorily discharged the onus of establishing that the reasons for the decision to terminate the applicant’s employment were not for a prohibited reason and the application was dismissed.
Sultana v Thomastown Child Care Centre Inc [2016] FWC 422 (Wilson C, 22 January 2016).
The applicant was dismissed from her role as a part-time Centre Carer in a small community based child care centre. The applicant argued that the respondent had taken two forms of adverse action against her. First, that she was injured in her employment with the decision to conduct a performance review of her; and second, that she was dismissed. The applicant submitted that she was dismissed because she had exercised a workplace right when she made complaints about her manager and a committee member in the course of allegations being put to her about her conduct.
The Commission found that the applicant had exercised a workplace right when she made the complaints. The evidence supported that adverse action was taken against the applicant in the form of a dismissal, however it did not support that she was injured in her employment with the decision by the respondent to conduct a performance review, because she was not treated any differently from any other employee.
When considering the reasons for the adverse action, the Commission found that the respondent did not dismiss the applicant 'because of a prohibited reason, or reasons which included that reason'. The application was dismissed.
[2] Fair Work Act s.369(2)(b).
[3] Fair Work Act s.392(4).
[4] Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd (2011) 193 FCR 526 [443]‒[444]; see also Ucchino v Acorp Pty Limited [2012] FMCA 9 (27 January 2012) at para. 78, [(2012) 218 IR 194].
[5] Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514, 525; Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd (2011) 193 FCR 526 [423].