Your employer must not dismiss you because you had one of these rights or asked for one of these rights:
- to be paid your correct wages or salary
- to take leave (this includes, parental leave, annual leave, sick leave, carers leave, long service leave and bereavement leave)
- to get payments such as overtime or other allowances (for example, tool allowances, uniform allowances, dry cleaning allowances and travel allowances).
- to request flexible hours (if you care for children under school age or a child under 18 with a disability)
- any other entitlements that are in your award or enterprise agreement
- any other rights or entitlements in state or federal laws.
This list does not list every example of a workplace right. There are many other laws that cover what happens at work including laws about health and safety at work and workers compensation. These laws may also give you rights.
Can your employer dismiss you for making a complaint or an enquiry?
Your employer must not dismiss you because you asked questions about your rights or conditions. Your employer also must not dismiss you because you made a complaint about them (for example, a complaint to the Fair Work Ombudsman) or started a legal case.
If you were dismissed from your job, you may be able to make a number of different claims against your employer. Before you make any claims or applications, you should get
legal advice to help you work out what is the right option for you.
If you were dismissed because you asked for or used a workplace right, it is possible to make a general protections application to the Fair Work Commission (the Commission).
If you want to make a general protections dismissal application to the Commission, you must do so within 21 days of the date you were dismissed.
The Commission may accept late applications, but usually only in exceptional cases.
The Commission will hold a conference to try and settle the dispute. If this does not solve the problem, it is possible to apply to the Federal Circuit Court to ask for an order.
The Federal Circuit Court can order that:
- you be reinstated (get your job back)
- your employer pay a fine (penalty)
- compensation be paid to you.
Which section of the Fair Work Act applies?
Section 340 of the Fair Work Act is the section that protects workplace rights such as the right to wages, leave and other entitlements. When filling out your general protections application form for the Commission, you will need to refer to this section of the Act.
Case study
Erich
Erich works as a waiter at Large Family Restaurant. Erich is worried that he is not being paid at the right wage rate. He asked his manager if they could meet to discuss his pay slips. His manager told him he would get back to him.
Two weeks later, Erich's manager called him and said that the restaurant was overstaffed and he had decided to let Erich go.
Erich may be able to make a general protections dismissal application if one of the reasons his manager dismissed him was because he asked to be paid the right wages.
This topic only deals with dismissals. However, it is possible to make a general protections application even if you have not been dismissed. You should get
legal advice if you have been dismissed or are having problems at work. You may have other options, such as:
- unfair dismissal claim if you were dismissed (for more information, see
Unfair dismissal)
- discrimination claim (if you have been discriminated against at work)
- bullying claim (if you have not been dismissed but are experiencing workplace bullying).
For answers to commonly asked questions, see
What are general protections? - Frequently Asked Questions.