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CAN YOU CLAIM UNFAIR DISMISSAL IN THE NSW STATE SYSTEM?

Any employee living and working in NSW is entitled to make an application for unfair dismissal under the NSW Industrial Relations Act if they are not caught in the Federal system and are NOT:

  1. Earning more than $106,400 (this amount increases in July of every year);
  2. Engaged under a contract of employment for a specified period of time, if the specified period is less than 6 months;
  3. Engaged under a contract of employment for a specific task;
  4. Serving a probation or qualifying period if the period was determined in advance and is 3 months or less; or if more than 3 months, it is reasonable having regard to the nature and circumstances of the employment;
  5. Engaged on a casual or short term basis, unless they have been employed by the same employer on a regular and systematic basis for a sequence of periods of employment during a period of at about six months and who would have had a reasonable expectation of continuing employment with their employer;
  6. An apprentice or trainee.

There is a 21 day time limit within which the application must be lodged from the written notice or date of termination. It is possible to apply after the 21-day period if the application is accompanied with reasons as to why the application is late.  The reasons for delay, hardship caused to employer and employee if the application were or were not accepted and conduct of the employer surrounding the termination will all be considered in a late application.

The filling fee since July 2007 is $58.00. In cases of serious financial hardship this may be waived, but you must seek a waiver of the fee at the time of filing the claim.

Generally, a few weeks after filing the claim a conciliation conference between the worker and the employer is held. This is an informal type of meeting in which the parties try to reach a settlement acceptable to both sides. It is a quick and inexpensive attempt at resolving the issues.

If no settlement is reached the matter is set down for arbitration hearing. This is a more formal process with a decision based on the evidence presented and for which binding orders will be made.

The remedies available or the orders that a commission may make include:

  1. Reinstate the employee to their former position or another comparable position;
  2. Provide back pay and other entitlements owing from the time of dismissal where reinstatement or re-employment is ordered;
  3. Compensate the employee with a payment or not dismiss employee where dismissal was threatened;

As a rule, compensation is awarded as the final remedy, when reinstatement or re-employment is not practicable.

Note that the maximum amount of compensation is six months of wages and it is open for the Commission to also dismiss the claim or apply penalties if the situation warrants.

NSW laws that continue to apply to all businesses in NSW include laws on occupational health and safety, workers compensation, payment of wages, public holidays, long service leave, jury service, trading hours and anti-discrimination.

If you have an unfair dismissal or unlawful dismissal claim, please do not hesitate to contact us for more information.