Originating application under the Fair Work Act 2009 alleging dismissal in contravention of a general protection (Form 79)

Rule 34.03 of the Federal Court Rules 2011 requires a person seeking orders over an alleged dismissal in contravention of a general protection in Part 3-1 of the Fair Work Act 2009 to file an originating application in accordance with Form 79, accompanied by the Fair Work Commission certificate that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. That certificate comes from the Commission process: the dismissal dispute is first taken to the Commission under s 365, within 21 days after the dismissal took effect unless the Commission allows more time (s 366), and the Commission issues the certificate under s 368(3)(a). Section 370 then allows a court application within 14 days after the certificate is issued, or a further period the court allows. Under s 361, once the applicant alleges the action was taken for a prohibited reason, it is presumed to have been, unless the employer proves otherwise.

When you need it

• You applied to the Fair Work Commission about a general protections dismissal, the dispute did not resolve, and the Commission issued a certificate under s 368(3)(a).
• You want orders such as an injunction, compensation or reinstatement (s 545 of the Fair Work Act sets out the orders the Court can make).
• You need an interim injunction urgently. Under s 370(b) a court application that includes an application for an interim injunction is not barred by the certificate requirement.
• Not for unlawful termination (Form 80, r 34.04) or a discrimination claim under s 351(1) (Form 81, r 34.05). The Federal Circuit and Family Court (Division 2) can also hear these claims under its own forms.

1. 1

   Heading and parties

   Name the applicant (the employee, or another person entitled to apply) and the respondent (usually the former employer). The Employment and Industrial Relations Practice Note (E&IR-1) says matters arising solely under the Fair Work Act are filed in the Fair Work Division. Leave the hearing date and place blank: the Registry inserts them.

2. 2

   Details of claim

   Describe each general protection you say was contravened and list each section of the Fair Work Act you rely on. Then tick the relief sought (injunction, compensation, reinstatement or other) and give details, including the amount and calculation of any compensation, such as lost income.

3. 3

   Accompanying document

   Attach the Fair Work Commission certificate (r 34.03(3)). This is not needed if the application is brought by a Fair Work Inspector (r 34.03(4)).

4. 4

   Employment details

   State when the employment started, the work and place of work, and when it ended. Say whether written notice of termination was given and attach a copy if it was.

5. 5

   Extension of time if you are late

   Complete this section only if you are filing more than 14 days after the Commission issued the certificate, and give your reasons. Section 370(a)(ii) lets the Court allow a further period. Delete the section if it does not apply.

6. 6

   Other relief, address and service

   List any other final relief in numbered paragraphs with the Act and provision relied on (r 34.03(2)). Give your address for service (r 11.01) and your residential or business address, say whether you intend to serve the respondent, then date and sign.

• File within 14 days after the day the Fair Work Commission issued the certificate, or ask the Court for more time in the form (s 370(a)).
• File with the certificate and with a statement of claim or affidavit, or a concise statement where the practice notes allow it (r 8.05, E&IR-1 para 4.2). eLodgment is the Court's electronic filing system. A filing fee applies - check the Court's current fee schedule.
• The Registry fixes a return date and place and endorses them on the application (r 8.05 note).
• Serve the sealed application and accompanying documents personally on each respondent as soon as practicable and at least 5 days before the first hearing (r 8.06).
• The respondent must then file a notice of address for service (Form 10) before attending court.

• The time limits stack up: 21 days to apply to the Commission after the dismissal (s 366), then 14 days after the certificate to go to court (s 370). Count them carefully.
• If the parties agree to Commission arbitration of the dispute under s 369, a court application generally cannot then be made (s 370 note 1).
• Costs are limited. Under s 570 a party can be ordered to pay costs only in specific cases, such as proceedings instituted vexatiously or without reasonable cause, or an unreasonable act or omission that caused the other party costs.
• Plead the reason you say the employer acted on. The s 361 presumption works off the reason or intent alleged in the application.