If you are an employee in NSW, you will be covered by one of two different sets of unfair dismissal laws, depending on the identity of your employer.
Which unfair dismissal laws apply
If you are a public sector employee (employed by the State or local government but not the Commonwealth government), you come within the New South Wales industrial relations system. These unfair dismissal laws are contained in Part 6 of the Industrial Relations Act 1996 (NSW).
If you are a private sector employee or are employed by the Commonwealth government in New South Wales, you come within the national workplace relations system, namely the Fair Work Act 2009 (Cth). Laws relating to unfair dismissal are found at Part 3-2 of the Fair Work Act 2009.
Certain kinds of workers do not have access to remedies for unfair dismissal in New South Wales; for example, some contractors, some casual employees and some trainees.
What is ‘unfair dismissal in New South Wales’?
For employees in NSW who come within the Industrial Relations Act 1996, you may bring a claim of ‘unfair dismissal’ if you believe the dismissal was harsh, unreasonable or unjust. ‘Dismissal’ also includes threats to dismiss an employee.
Under the national Fair Work Act 2009, ‘unfair dismissal’ includes harsh, unreasonable or unjust dismissals that are not genuine redundancies and are not, in the case of small business employees (ie employees of businesses with less than 15 employees), consistent with the Small Business Fair Dismissal Code. It also includes situations where an employee resigns under pressure because of their employer’s behaviour.
Common scenarios where an employee may be unfairly dismissed include:
- where there is no valid reason for the dismissal
- where the employee was not informed of the reasons for their dismissal, or
- where the employee was terminated for poor performance but was never warned that they were performing poorly.
Eligibility to make ‘unfair dismissal’ claims in New South Wales
Unfair dismissal claims under the NSW workplace relations system are made to the Industrial Relations Commission. You can make a claim using the appropriate form on their website. Alternatively a registered industrial organisation of which you are a member or entitled to be a member can make the claim on your behalf.
The claim must be made within 21 days of the dismissal. However, only certain kinds of employees can bring unfair dismissal claims. Generally, you must be employed in the public sector and either covered by an enterprise agreement or state industrial award or have an annual salary of $133,000 or less.
You cannot bring an unfair dismissal claim if you are:
- employed for a specific task
- employed under a contract for less than 6 months,
- a casual employee who is employed for less than 6 months, or
- an apprentice or trainee.
Procedure for unfair dismissal in New South Wales
If you lodge a form to make an unfair dismissal claim, you will first be required to take part in a conciliation with your former employer. The purpose of the conciliation is to attempt to resolve the claim without a full hearing.
The conciliation is overseen by a member of the Industrial Relations Commission, and you can be represented by a friend, family member, union or, if permitted, a lawyer. The Industrial Relations Commission has published a guide to conciliation on their website.
Conciliation may result in, for example, a financial settlement or a retrospective resignation.
Arbitration of unfair dismissal matters
If conciliation is unsuccessful, an arbitrated hearing will be held by a member of the Industrial Relations Commission. You can be represented by an industrial agent or lawyer at the hearing, provided that agent or lawyer files a certificate to state that he or she considers there are reasonable prospects of you succeeding at the hearing.
You will be required to file and exchange (‘serve’) written statements with your employer. The Commission member will hear evidence from both parties and may then make a number of different orders.
If you are successful in your claim, your employer may be ordered to reinstate or reemploy you, or alternatively make payment to you as compensation for ‘lost wages’. The Commission only has the power to make an order of up to six months’ compensation for any lost wages.
Eligibility to make unfair dismissal claims under Commonwealth law
For private sector employees in NSW or those employed by the Commonwealth government, unfair dismissal claims under the national workplace relations system will be made to the Fair Work Commission. You can make the claim by lodging the appropriate form, which must usually be lodged within 21 days of the dismissal.
Only certain kinds of employees can bring unfair dismissal claims to the Fair Work Commission. These include private sector employees who:
- have been with their employer for at least 6 months (or 12 months if the employer has less than 15 employees), and
- are covered by an award or enterprise agreement, or
- have an annual salary of $133,000 or less.
Contractors, casual employees and trainees will generally not satisfy these requirements if they are only employed for a certain period of time that is less than the required employment period mentioned above.
Procedure for unfair dismissal claims under Commonwealth law
Similar to unfair dismissal claims made by NSW public sector employees, private sector employees and Commonwealth government employees will be required to undergo an informal conciliation process with the Fair Work Commission.
If conciliation is unsuccessful, a member of the Fair Work Commission will hold a conference or a hearing to resolve a dispute. Conferences are generally private, whilst hearings are held in public; the Commission will let you know which applies to your application by issuing you with a ‘Notice of Listing’.
You will usually require permission to be represented by a lawyer at the conference or hearing. You can also present evidence in the form of witness statements. The member overseeing the conference or hearing will then consider the evidence presented by both parties and decide whether you were unfairly dismissed. In making this decision, the member is required to consider a number of factors, including whether a valid reason existed for your dismissal, and if you were notified of why you were dismissed.
The two key remedies you may receive for an unfair dismissal are reinstatement in your former position, or financial compensation (the maximum amount of which will usually be the equivalent of 26 weeks’ remuneration or, if you earn more than $133,000 per annum, half of that amount). The maximum compensation amount is rarely awarded.