Q & A about general protections claims

1. I’ve missed the 21-day deadline. Can I still make a claim?

You may be able to apply for an extension of time, if you have a valid reason. If you have not been dismissed, there is a 6-year time limit from the cause of action accruing.

2. I was dismissed during my probation period. Can I make a claim?

Only if you believe the dismissal was discriminatory or in response to you exercising a workplace right. 

3. How do I prove discrimination or unfair treatment? 

The onus of proof is on the employer to prove that the adverse action was not due to the exercise of your rights or a protected trait. It is presumed that the employer’s action was taken for that discriminatory reason unless the employer can prove otherwise.

4. Will the other side pay for my legal fees?

Each party must bear its own costs. If the matter proceeds to a formal hearing, the Commission has the discretion to make a costs order if satisfied that the application or response was vexatious, or without reasonable cause, or had no prospects of success (section 611 of the Fair Work Act). A costs order is difficult to obtain and should not be relied on. 

1. My dismissal was both unfair and unlawful – should I make an unfair dismissal claim or a general protections application?

There are important distinctions between the two applications – not only with respect to the claim itself, but also the level of difficulty and available remedies. A failure to make the correct application can jeopardise your chances of success. It is best to obtain our personalised advice as soon as possible.

Please note that the above answers are generalised and may vary in light of your circumstances. Call us on (03) 9583 6263 to make an appointment.