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Aitken Legal often assists employers to defend general protections applications involving dismissal.

I am Kate Simpson from Aitken Legal, and in this video I am going to give you an overview of what to expect when you first receive a general protections application involving dismissal.

Typically, these claims involve an employee alleging that they have been dismissed because they made a complaint about their employment. There are a number of other allegations an employee can make through this type of claim, but most of the claims we see involve employee’s alleging they made a complaint and were terminated because of it.

Employee’s may favour this type of application because unlike unfair dismissal it has no cap on compensation, and penalties can be ordered against persons and entities in breach of the relevant provisions of the Fair Work Act. An employee may also favour this application if they are unable to make an unfair dismissal claim – for example, they have not yet served the minimum period of employment with the employer.

Typically, an employer will be notified that an application has been filed when they receive a notification email from the Fair Work Commission which contains the employee’s general protections application and the notice of listing. The notice of listing details when the conciliation conference will be held.

After receiving that initial email, you will have seven days to provide your response to the general protections application to the Fair Work Commission.

It is very important that you carefully consider the application, as the next step will be to collate any evidence you have to counter the application, and then prepare the response. As part of that response, you will need to consider, and then indicate, whether you have a jurisdictional objection to the application. Aitken Legal’s lawyers are experts in preparing these responses and putting forward the best possible arguments for their clients. Accordingly, we recommend that employers obtain expert legal advice at this stage in the process, to give you the best prospects of resolving the matter at the conciliation conference.

Once your response has been filed then the next stage will be the conciliation conference. These conferences are very similar to a mediation. The relevant parties are brought together before an independent conciliator (or in some cases a Member of the Commission) who will try to assist the parties to resolve the matter. If a resolution can be reached, then the parties will both be required to sign a Terms of Settlement document that will confirm the terms of resolution agreed to between the parties.

If the matter is not resolved at the conference, then a certificate confirming that there are no prospects of resolving the matter will be issued by the Commission. The employee will then have to file an application in the Federal Circuit Court to continue their claim, or the parties can agree to consent arbitration before the Fair Work Commission.

Our experienced employment lawyers at Aitken Legal assist employers to defend general protections claims as a core part of our services, and we recommend that employers strongly consider getting legal representation in the initial stages of these proceedings to give you the best chance of achieving a positive result or resolution.

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