What should I include in my General Protections application (involving dismissal)?

A general protections application Form F8 is based on your employer taking adverse action against you because of a particular attribute and/or protection.

You should ensure that you address each criterion and question in the general protections application form.

Keep in mind that the purpose of application is to outline all of the facts giving rise to your general protections claim.

You may need to refer to particular provisions of the Fair Work Act 2009 (Cth), but of primary importance is to substantiate your claim through consideration of what actions or conduct of your employer gives rise to your claim.

Ensure that you make clear that you have the particular attribute alleged, for example, a disability, or have exercised your workplace right to make a complaint.

• You may attach your own statement of events and/or answers to the questions as a separate document to the application.
• To do so you should reference your attached document in each question box. If you do draft your own document, ensure that it answers the required information outlined in the form and criteria for a general protections claim.

You may rely on more than one protection and/or attribute.

Once you allege a contravention of a general protections provision, it is presumed that the adverse action taken against you was because of the protection and/or attribute unless your employer proves otherwise (section 361). This is also known as the reverse onus.

1. Workplace RightYour employer is prohibited from taking action against you for the exercise, existence or non-exercise of a workplace right(s) or to prevent you from exercising a workplace right (section 340(1)).You have a workplace right if you have a benefit, role or responsibility under a workplace law or instrument, are able to initiate or participate in a process or proceedings under a workplace law or instrument or are able to make a complaint in relation to your employment. (section 341)Common examples of workplace rights include:
   • The right to a working environment that is safe and without risks to health under section 21 of the Occupational Health and Safety Act 2004 (Vic);
   • the right to take paid annual leave for a period agreed with the Respondent under section 88 of the Fair Work Act 2009 (Cth);
   • the right to take paid personal leave when not fit for work because of a personal illness under section 97(a) of the Fair Work Act 2009 (Cth);
   • the right not to be discriminated against on the basis of race under section 18 of the Equal Opportunity Act 2010 (Vic).
   • the right to make a complaint or inquiry to an employer in relation to employment under section 341(1)(c)(ii) of the Fair Work Act 2009 (Cth);

    

   A workplace right may also include entitlements contained in any modern award or enterprise bargaining agreement governing your employment

    

2. Industrial activities

Your employer is prohibited from terminating your employment because you:

• Are or are not, was or was not an officer or member of an industrial association; or
• Engage, engaged or proposed to engage in industrial activity;
• Have not engaged or proposed to engage in industrial activity (section 346)

Engaging in industrial activity is defined to include:

• Becoming, not becoming, remaining or ceasing to be an officer or member of an industrial association;
• Organising or not organising or promoting an unlawful activity for or on behalf of an industrial association;
• Encouraging or not encouraging,
• Participating in or not participating in an unlawful activity organised or promoted by an industrial association; or
• Seeking or not seeking to be represented by an industrial association (section 347)
• There are numerous other forms of protected industrial activity. For further information, refer to (section 347) of the Fair Work Act 2009 (Cth).

Your employer is prohibited from terminating your employment because you have been temporarily absent from work due to illness or injury (section 352).

Step-By-Step Guide to completing FWC Form F8 – General Protections

Question 1: General protections dismissal

1.1 On what date were you dismissed?

This is the date that your employment ceased. If you were given notice of your dismissal, it is the day your notice period ends.

1.2 What date did your employment with the Respondent commence?

This is the date that you first commenced employment either on a casual or permanent basis. The date of this may be found in any employment contract you may have or your first pay slip.

1.3 What reasons (if any) did the Respondent give for dismissing you?

These reasons may be those listed in your termination letter, separation certificate and/or those stated to you verbally during any termination meeting.

1.4 Are you making this application within 21 calendar days of your dismissal taking effect?

This is the date that the termination of your employment or your resignation takes effect.

If you have given or been given notice, the date your dismissal takes effect is the date after your notice period ends.

If you answer “no”, and are seeking to lodge an application later than 21 days after your dismissal takes effect, you may seek an exemption from the FWC.

See Can I lodge a FWC application outside of the 21 calendar day time period?

1.5 Have you made another claim to the Commission or to any other organisation in relation to your dismissal (e.g an unfair dismissal claim)?

You are not permitted to make general protections application if you have already made a FWC unfair dismissal application or an application under any other legislation (section 725).

Question 2: Remedy

What outcome are you seeking by lodging this application?

See What can I claim in my general protections application (involving dismissal)?

Question 3: Alleged contravention

3.1 Describe the actions of the Respondent that have led you to make this application.

This includes the adverse action taken against you including your dismissal.

See What should I include in my General Protections application (involving dismissal)? above.

3.2 Which section(s) of the Fair Work Act 2009 do you allege the Respondent contravened when they took (or threatened or organised) the above action against you?

You should mark the boxes that apply to your situation, depending on what you have described in question 3.1.

3.3 Explain how the action you have described in 3.1 has contravened the section(s) of the Fair Work Act 2009 you identified in question 3.2

This requires specific reference to the sections that you have alleged and the facts.

See What should I include in my General Protections application (involving dismissal)? above.

Alternatively you may answer questions 3.1 and 3.3 in the same space and cross-reference your answers.