A general protections dispute can be resolved through taking action in either, and sometimes, both:
The end result will depend on whether the application is for a dismissal dispute or a non-dismissal dispute, and the willingness of the parties to resolve the matter.
A general protections dismissal dispute application starts within the Commission, unless the general protections dispute application includes an application for an interim injunction, which means that it is taken directly to Court.
In contrast, a non-dismissal dispute application will only commence with a Commission conference if both parties agree. If both parties do not agree to a conference then the matter can proceed directly to Court.
Note: An applicant in a non-dismissal dispute matter may make an application directly to the Court, an application does not need to be lodged with the Commission.
If the general protections dispute is resolved during the Commission conference, the parties should sign a ‘Terms of Settlement’ document which formalises their agreement. The Terms of Settlement is customised to reflect the wishes of the parties. It can contain details of compensation or steps to be taken, as well as issues regarding privacy or non-disparagement terms.
Mutual non-disparagement means that both parties agree that they will not make negative comments about the other party which could affect their reputation or standing in the community.
If the general protections dispute is not resolved during the Commission conference, and the Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then the Commission must issue a certificate to that effect.
A certificate is a Commission document which states the parties to the dispute, that the Commission conducted a conference and that the dispute could not be resolved by that process.
After conducting a conference and taking into account all of the material presented, if the Commission considers that the dispute, if taken to Court, would not have a reasonable prospect of success, the Commission must advise the parties.
This is done to ensure that the parties understand the likelihood of success if the dispute continues to a general protections court application or arbitration.
There is no specified way for this advice to be given.
If a general protections dismissal dispute is not resolved during the Commission conference, and after receiving the certificate the parties agree to the Commission resolving the dispute by arbitration, the Commission will hold a determinative conference or hearing.
At the conclusion of the arbitration process the Commission may make one or more of the following orders:
If a Commission order applies to a person, then that person must not contravene a term of the order. If the order is contravened, it can be enforced through the Courts, which may result in further penalties being applied.
Compensation is a broad concept which should not be interpreted in a narrow way.
The Commission has power to make ‘an order for the payment of compensation to the person’ in relation to a general protections matter. The Fair Work Act 2009 does not limit the scope of the compensation as it does in relation to unfair dismissal, where an amount ordered to be paid to a person who has been unfairly dismissed ‘must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal’ and is otherwise limited to six months’ pay.
Compensation can include compensation for non-economic loss such as hurt, humiliation and distress.
There must be a causal connection between the contravention and the loss, which is always a question of fact.
 Fair Work Act s.369(2)(b).
 Fair Work Act s.392(4).
 Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd (2011) 193 FCR 526 ‒; see also Ucchino v Acorp Pty Limited  FMCA 9 (27 January 2012) at para. 78, [(2012) 218 IR 194].