"A guide to unfair dismissal rights in NSW"
Unfair dismissal A guide to unfair dismissal rights in NSW State industrial relations laws cover most than a short period. Defining a short period NSW unincorporated businesses (eg sole will depend on the circumstances of each traders and partnerships) as well as some case. incorporated businesses operating in NSW (eg some charities and not-for-profit Who is NOT eligible to make an organisations). unfair dismissal claim? As follows: Under the NSW Industrial Relations Act 1996 (the Act) an employee, who believes • employees covered by a federal award if they have been unfairly dismissed or they have a right to make a claim under threatened with dismissal, can apply to federal law the NSW Industrial Relations Commission • employees engaged under a fixed (the Commission) for reinstatement and/or contract of less than six months compensation. • employees engaged under contract for a specific task When is a dismissal unfair? • employees serving a pre-determined A dismissal is unfair when it is ‘harsh, probation or qualifying period of three unreasonable or unjust’. In dealing with a months or less (this period may be more claim, the Commission may take into account than three months if it is reasonable in whether the employer: relation to the nature and circumstances of the employment) • gave a reason for the dismissal • employees engaged on a casual basis for • allowed the employee to explain or a short period. justify why they should be reinstated or re-employed Apprentices and trainees cannot make unfair • provided the employee with a dismissal applications under the Act, but warning of unsatisfactory other legislative remedies are available. performance. How can an employee make an The Commission may also take into account any other matters that it considers relevant. application? A dismissed employee, or an employee Who is eligible to make an unfair threatened with dismissal, can lodge an unfair dismissal application with the Commission at dismissal application? the Industrial Registry. In general, the unfair dismissal provisions of the Act apply to: There is a specific form which has to be • employees who are covered by a completed. The staff of the Registry can NSW award or enterprise agreement assist with this. Contact them on 9258 0866. • NSW public sector employees • employees whose work is not A union can make an application on behalf of covered by an award and who earn the employee or employees involved. less than $108,300 per year (this amount is automatically indexed on 1 How quickly must the application July each year). be made? A casual employee in these categories is able An application must be made within 21 to lodge a claim for unfair dismissal if the days of the dismissal. There is some scope casual employee was employed for more for the Commission to accept applications www.industrialrelations.nsw.gov.au | 131 628 | July 2009 beyond this period, if it considers there is remuneration during an unfair dismissal sufficient reason to do so. hearing. Special conditions apply to such claims. How is an employee's application dealt with? Need more help? After an application has been lodged, there For assistance or additional information, will be a conciliation hearing. The employee please contact: and the employer will meet with a member of Office of Industrial Relations (state) the Commission in an attempt to resolve the Ph: 131 628 (local call charge in NSW) claim. TTY: 1800 555 677 www.industrialrelations.nsw.gov.au If conciliation is unsuccessful, the application will proceed to an arbitration hearing. This Fair Work Ombudsman (federal) process is more formal. Both the employee Federal wages and work conditions and the employer are able to make Ph: 13 13 94 submissions setting out their case to the www.fwo.gov.au Commission. Free online services After hearing from both sides, the The OIR website provides a number of free Commission will determine the claim either by online services: dismissing it, or by making a legally enforceable order where it upholds the claim. • NSW Awards Online provides easy access to award information including pay The employee and employer can be rates and leave entitlements. represented by an agent, an industrial • Pay Rate Updates lets you subscribe organisation or a lawyer. online and receive email alerts on changes to NSW pay rates and award What can the Commission do? conditions that affect your workplace. Where the Commission upholds a claim, it • Check Your Pay helps you calculate may order an employer to: wages. • reinstate the employee to their former • Leave calculators - helps you calculate position annual leave and long service leave. • re-employ the employee in another • Online sample pay slips help employers position that the employer has available create their own employee pay slips. • provide back pay and other entitlements • Your Workplace Online - subscribe to owing from the time of the dismissal, this quarterly e-newsletter to keep you where reinstatement or re-employment is up-to-date with workplace issues. ordered • compensate the employee by ordering Small business workshops payment of an amount not exceeding the State-wide workshops are offered by the OIR remuneration of the employee during the on a range of industrial relations and human six months before the dismissal, where resource topics to help business owners and reinstatement or re-employment is managers. considered impracticable • not dismiss the employee, where Free workshops include employer rights and dismissal has been threatened. responsibilities under industrial relations legislation. They also cover the impact of federal industrial relations changes and Other information specific employment issues. The Commission also has powers under other sections of the Act and other legislation Other topics include recruiting and retaining to reinstate employees who are dismissed in staff, developing workplace policies and the course of an industrial dispute or as a managing staff performance. result of victimisation or a work injury in certain circumstances. For more information visit the OIR website If an employee believes the employer has not paid all remuneration owing to them, a claim may also be possible for non-payment of www.industrialrelations.nsw.gov.au | 131 628 | July 2009