If an employee thinks that he/she has been unfairly dismissed by their employer, it may be possible that an unfair dismissal claim can be made to the New South Wales Industrial Relations Commission. Dismissal includes threatened dismissal.
From 1 January 2010, private sector NSW employers and employees previously covered by the NSW state award system (mainly sole traders and partnerships) moved into the national workplace relations system administered by the federal government. Generally, employees employed by a corporation have been covered by the national system since the introduction of the Workchoices legislation in March 2006.
Information about federal unfair dismissal procedures .
The effect of that change is that an employee will only be covered by the NSW industrial relations system if he or she is:
If an employee is employed by one of these types of employer and is :
either covered by a State industrial award or enterprise agreement
or is award free and earns no more than $145,400
he or she may be eligible to make an application for relief from alleged unfair dismissal.
This may include:
some casual employees;
employees who have been forced to resign;
employees who have been dismissed while on workers compensation.
employees of private sector employers if dismissed after 1 January 2010
apprentices or trainees;
employees on a 3 month probation period if determined in advance;
employees on contracts of employment for a specified period of time less than 6 months;
employees engaged under a contract of employment for a specific task.
Apprentices and trainees may contact the Apprenticeships & Traineeships Hotline on 132 811 for information about termination of their apprenticeship.
Where the Commission upholds a claim, it may order an employer to:
reinstate the employee to their former position
re-employ the employee in another position that the employer has available
provide back pay and other entitlements owing from the time of the dismissal, where reinstatement or re-employment is ordered
compensate the employee by ordering payment of an amount not exceeding the remuneration of the employee during the six months before the dismissal, where reinstatement or re-employment is considered impracticable
not dismiss the employee, where dismissal has been threatened.
1. The Commission also has powers under other sections of the Act to reinstate employees who are dismissed in the course of an industrial dispute or as a result of victimisation or a work injury in certain circumstances.
2. If an employee believes that the employer has not paid all remuneration owing to them (to a figure not exceeding $10,000), the employee may make a claim for non-payment of remuneration during an unfair dismissal hearing. Special conditions apply to such claims.
To make a claim, applicants must fill in an application form and file it at the Industrial Registry, Level 10, 10-12 Smith Street, Parramatta. Applications may also be filed at any NSW Local Court (except Central Local Court. The application can be lodged in person or by mail and through your solicitor, agent or union representative. As of 1 August 2018, a $84.00 fee must be paid when a claim is filed. An original application with two copies should be filed. A list of NSW Local Courts can be found at http://www.localcourt.justice.nsw.gov.au/courtlocationsApplication forms are available at the Registry, Level 10, 10-12 Smith Street, Parramatta or can be downloaded in MS Word or PDF formats by selecting the links below:
Form 7A - Application for Relief in Relation to Unfair Dismissal
The Application, Form 7A must be filed within 21 days from the date on which the dismissal took effect. If it is made later than that applicants must provide reasons why the claim is late.
The Commission will look at the reasons for the delay and may or may not hear the application. In making its decision the Commission will have regard to:
the reason for, and the length of, the delay,
any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and
the conduct of the employer relating to the dismissal.
Before filing the application, applicants should ensure that all the questions on the application form have been completed, in particular the following:
Name of the State award or agreement (question 20)
The application requires that the name of the State award or agreement applying to the employment be provided. To check the correct NSW state award or agreement an employee should call:
Award Enquiry Service 131 628
If the applicant is not covered by an award or agreement, details of the annual remuneration must be provided on the application (question 23). An award free applicant cannot make an application if the annual remuneration is over $136,700 .
If the employee is under a Federal award the application must be made to Fair Work Australia (FWA).
To check the correct Federal award or agreement an employee should call:
Fair Work Infoline 13 13 94
More information can be obtained from FWA Unlawful Termination Registry on (02) 8374 6666, or the
FWA website .
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