Depending on the identity of your employer, you will be covered by one of two sets of unfair dismissal laws if you get employment in NSW.
Laws that govern unfair dismissal
As a public sector employee (working for the State or a local government and not the Commonwealth), you fall under the New South Wales industrial relations system. Part 6 of the Industrial Relations Act 1996 (NSW) contains unfair dismissal laws.
You come under New South Wales’s national workplace relations system if you work in the private sector or the Commonwealth. The Fair Work Act 2009 contains laws pertaining to unfair dismissal in Part 3-2.
New South Wales does not allow workers to seek remedies for unfair dismissal in certain circumstances, for example, contractors, casual employees and trainees.
In New South Wales, what is unfair dismissal?
If you believe the dismissal in NSW was harsh, unreasonable, or unjust, you can bring a claim of ‘unfair dismissal’ under the Industrial Relations Act 1996. The term ‘dismissal’ also includes threats to dismiss an employee.
Under the national Fair Work Act 2009, harsh, unreasonable and unjust dismissals are defined as not genuine redundancies and do not comply with the Small Business Fair Dismissal Code for employees of businesses with fewer than 15 employees. In addition, it covers situations in which an employee resigns due to their employer’s behaviour.
Unfair dismissal is most likely to occur in one of the following situations:
- Dismissal without a valid reason
- When an employee has not been informed of the grounds for their dismissal, or
- Employees terminated for poor performance without being informed of their poor performance.
- Eligibility to bring an “unfair dismissal” claim in New South Wales
An unfair dismissal claim is filed with the Industrial Relations Commission in NSW. Their website has the appropriate form for filing a claim. A registered industrial organization of which you are a member may also claim.
You have to file an unfair dismissal claim within 21 days of dismissal. Certain kinds of employees can only bring unfair dismissal claims. In general, you must either be employed in the public sector under an enterprise agreement or state industrial award or earn $133,000 or less annually.
Unfair dismissal claims cannot be filed if you are:
- Employed to do a specific job
- Working under a contract for less than six months,
- Someone who is employed for fewer than six months or is an apprentice or trainee.
New South Wales unfair dismissal Procedure
In order to make a claim for unfair dismissal, you must first take part in a conciliation process with your former employer. Conciliation means resolving a dispute without a formal hearing.
An Industrial Relations Commission member oversees the conciliation process. Anyone can be involved, including a friend, a family member, a union representative, or a lawyer if permitted.
The outcome of conciliation may be, for instance, a financial settlement or a retroactive resignation.
An arbitration process for unfair dismissal cases
If you fail in the conciliation process, the Industrial Relations Commission will conduct an arbitration hearing. Industrial agents and lawyers are allowed to represent you at the hearing, provided that they submit a certificate saying that they believe you have a reasonable chance of winning.
Written statements will need to be filed and exchanged (‘served’). After hearing from both parties, the Commission member may issue a number of orders.
If you win your case against your employer, you may receive compensation for ‘lost wages’. The Commission can only order compensation for lost wages for up to six months.
Commonwealth law eligibility for unfair dismissal claims
Employees in the private sector in NSW and Commonwealth employees can bring unfair dismissal claims to the Fair Work Commission under the national workplace relations system. A claim can be made by filing an appropriate form that you must file within 21 days of being dismissed.
The Fair Work Commission can only hear unfair dismissal claims from some types of employees. This includes employees in the private sector who:
- Having worked for at least six months (or 12 months for employers with fewer than 15 employees);
- Awarded or covered by an enterprise agreement, or
- Have a salary of 133,000 dollars or less.
Contractors, casual workers, and trainees won’t meet these requirements if they are employed only for a short period of time, which is less than the required employment period.
How unfair dismissal claims handled under Commonwealth law?
Generally speaking, the Fair Work Commission is required to listen to informal conciliation complaints by the private sector and Commonwealth government employees who have experienced unfair dismissal.
Fair Work Commission will hold a hearing investigation or conference if conciliation fails. A ‘Notice of Listing’ will let you know which applies to your application; conferences generally take place in private, while hearings occur in public.
A lawyer will usually need permission to represent you at conferences or hearings. There you can also use Witness statements as evidence. During the hearing or conference, the member overseeing the hearing or conference will weigh the evidence presented by both parties and decide if your dismissal was unfair. A member of the Board should consider a number of factors, such as whether a valid reason for your dismissal existed, and whether you were informed of the reason for your dismissal.
If your dismissal is unfair, the two main remedies are reinstatement in your previous job or financial compensation (usually the equivalent of 26 weeks’ wages or half of your salary if you earn more than $133,000). There are very few situations where you will receive maximum compensation.
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