Click here for PDF of this article

UNFAIRLY DISMISSED IN NSW? WHERE TO SUE?

In Australia, every state with the exception of Victoria has two Industrial Relations systems; the federal system and the state level system. This brief article looks at the situation workers face in New South Wales (NSW) in 2007.

Prior to the introduction of WorkChoices in March 2006, a worker who was unfairly dismissed could make an unfair dismissal claim usually within the same jurisdiction as the award or enterprise agreement which governed their employment contract. For example, they could lodge an unfair dismissal claim in the NSW Industrial Relation Commission if their award was a NSW State Award covering such jobs as a kindergarten or child care teacher, shop employee, hotel and club worker, clothes maker and transport worker.

There was not much difference between lodging an unfair dismissal application at federal or state level and in fact there still are many similarities. The biggest and most obvious difference is that if you work for an employer who employs fewer than 100 workers you may bring a claim for unfair dismissal at the state level through the NSW Industrial Relation Commission.

Although it is now estimated that 80-85% of employees are caught by the federal system, largely because they work for a corporation or company of some description, 15-20% of employees are outside the federal system who are thereby eligible to make a claim under the NSW system. In addition, even those workers who fall within the federal system may in particular circumstances bring a claim within the NSW system.

The most common way of falling outside the federal system is to work for an employer who is not a corporation. This is the case if you work for a sole trader, a partnership or a trust. If you live in NSW this means that the state industrial laws apply to your working conditions. This includes holiday pay, penalty rates, harsh and unfair contracts and carer’s leave.

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