How is an action to enforce a general protection initiated or defended?

Authored by Catherine Dow, Lawyer and Jacqueline Parker, Special Counsel, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team.

Does the dispute relate to a dismissal?

This guidance note outlines the process for bringing and defending general protections claims in the Fair Work Commission (FWC) and in the Federal Court of Australia and Federal Circuit and Family Court of Australia. It does not deal with the substantive requirements of a general protections claim and refers only in passing to the remedies available to a successful claimant.

See Guidance Notes: What is a “workplace right”?, Who can make an adverse action claim?, Are there general protections for engaging in industrial activities? and General protections — What remedies are available?

The Fair Work Act 2009 (Cth) (FW Act) establishes separate frameworks for dealing with:

• general protections disputes relating to a dismissal, and
• other types of general protections disputes.

Broadly speaking, if the applicant alleges that he/she has been dismissed from employment, the parties must attempt to resolve the dispute in the FWC before a general protections application can be made to the court, whereas a non-dismissal claim can proceed straight to court unless the parties agree for the FWC to deal with the dispute. An exception applies if the applicant is also seeking an interim injunction ie to prevent the dismissal or order reinstatement, in which case the matter should go directly to court. These procedures are discussed in more detail below.