Who Can Make an Unfair Dismissal Claim?
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:
- a state public sector employee
- a local government employee
If an employee is employed by one of these types of employer and is :
he or she may be eligible to make an application for relief from alleged unfair dismissal.
- either covered by a State industrial award or enterprise agreement
- or is award free and earns no more than $133,000
This may include:
- some casual employees;
- employees who have been forced to resign;
- employees who have been dismissed while on workers compensation.
Who may not be able to file a claim?
- employees of private sector employers if dismissed after 1 January 2010
- apprentices or trainees;
- independent contractors;
- employees on a 3 month probation period if determined in advance;
- some casual employees;
- 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.
What can the Commission do?
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.
Completing the Application (Form 7A)
To make a claim, applicants must fill in an application form and file it at the Industrial Registry, 47 Bridge Street. Applications may also be filed at the Commission's Registry at Newcastle and at Wollongong. The application can be lodged in person or by mail and through your solicitor, agent or union representative.
As of 9 July 2014, a $76.00 fee must be paid when a claim is filed. An original application with two copies should be filed.
Application forms are available at the Registry, 47 Bridge Street or can be downloaded in MS Word or PDF formats by selecting the links below:
| Document Name |
|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 $133,000.
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.
- Place of work (question 9)
It is important to correctly state the place of work as the location of the workplace usually determines where the Commission hears the claim.
- The employer's correct name (question 7)
It is important that the name of the employer nominated in the application has been correctly described, for example, Department of Finance and Services (NSW Fair Trading).
- The employer's address and telephone number (questions 8 and 10)
- The applicant's weekly rate of pay (gross) (question 23)
Compensation is usually calculated on the basis of so many weeks pay at the gross amount.
- The effective date of dismissal (question 15)
This is usually the last day worked.
- Statutory Declaration (page 6)
Unrepresented applicants should ensure that the Statutory Declaration is signed and witnessed by a Justice of the Peace.
If an applicant is represented, the applicant's representative should sign the application.
- Remedies under another Act
If you think you may be able to seek a remedy under other legislation, you will need to decide which action to take, for example an applicant may be able to take action under the Anti Discrimination Act 1977. If you decide to file your claim with the Industrial Registry, you should consider completing the undertaking not to proceed with other redress.
Download Form 11, Undertaking Not to Proceed With Other Redress Relating to Dismissal:
| Document Name |
|Form 11 - Undertaking Not to Proceed with other Redress Relating to Dismissal|
- Reasons for Application
Applicants should also complete the Reasons for Application and explain how they were dismissed and the reasons why the dismissal is unfair.
What Happens After the Claim is Filed?
When the application is filed at the Industrial Registry, applicants will be given a date, time and location for conciliation and a copy of "A Guide to Conciliation of Unfair Dismissal Claims". Where applications are filed by mail, applicants will be advised by mail of the time, date and location for the conciliation and sent a copy of "A Guide to Conciliation of Unfair Dismissal Claims".
In the Sydney Metropolitan area most cases are listed for conciliation 3 weeks after filing. Where the workplace is located outside the Sydney Metropolitan area cases may take slightly longer to list.
Information for Employers/Respondents
The Registry will post to the employer (respondent) at the address provided on the application form the following:
- Copy of the application
- Details of the date, time and location for the first conciliation.
- Employer's Reply which should be completed and, within 10 days of receipt, returned to the Industrial Registry. The Respondent should also send a copy of the Reply to the applicant.
- Notice of Appearance which should be returned to the Registry within 7 days of receipt.
- Guide to Conciliation of Unfair Dismissal Claims
The Employer's Reply is an opportunity for the respondent to give details of his/her position in respect of applicant's claim.
If the employer is a member of an employer's association, it is suggested that the employer contact that organisation for advice.
Download Form 7x, Employer's Reply and Form 37, Notice of Appearance:
| Document Name |
|Form 7x - Employer Reply to Application for Relief in Relation to Unfair Dismissal|
|Form 37 - Notice of Appearance|
|Guide to Conciliation of Unfair Dismissal Claims|
Conciliation is an important first step in resolving an unfair dismissal claim - it is very important that both parties attend. The purpose of conciliation is to try and resolve a claim by agreement without proceeding to a full hearing. A claim may not proceed to arbitration unless all reasonable attempts to settle it by conciliation have been made.
Practitioners, industrial agents and others who appear before the Commission should do all they can to facilitate the fair and prompt disposal of matters before the Commission. Ways in which this should occur include:
- ready identification of the issues in dispute
- ensuring readiness for the conciliation hearing
- using their best endeavours to resolve the issues in dispute
What Happens if Conciliation Fails?
At the conclusion of unsuccessful conciliation the Member of the Commission who conducted the conciliation will make the "usual directions" in order to prepare the matter for an arbitrated hearing.
A date for the arbitrated hearing should usually be fixed at the time of making the "usual directions".
The following documents will assist in preparation for arbitration:
| Document Name |
|A Guide 'What Happens if Conciliation Fails"|
|Practice Direction No.17|
|Guide to Preparing for Arbitration of Unfair Dismissals|
|Notes to Assist Parties in Preparing Statements for Unfair Dismissal Matters|
|Form of Statement - Unfair Dismissal Claim|
These documents are also available on request from the Registry.
The Power to Order Costs
The Industrial Relations Commission has the discretion to order costs and may determine by whom and to what extent costs are to be paid. (s.181(1) of the Industrial Relations Act 1996. The Commission may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of Chapter 3 of the Legal Profession Act 2004 or on any other basis.
Costs includes costs of or incidental to proceedings in the Commission and in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal s.181(4)
The Commission when it is not sitting as the Industrial Court of New South Wales may only award costs:
- against an applicant if it considers that an application was frivolous or vexatious, or
- against a party to proceedings who, in the opinion of the Commission commenced proceedings without reasonable cause, or
- against a party in unfair dismissal proceedings who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or
- in proceedings for a breach of an industrial instrument or the recovery of money under Chapter 7, as provided by sections s.357 and s.373 of the Industrial Relations Act 1996.
Costs in unfair dismissal proceedings will only be awarded when at least one of the above criteria is established, and even then is not automatic. The Commission has a discretion as to whether and what costs ought to be awarded in these circumstances.
The Commission when it is not sitting as the Industrial Court of New South Wales may award costs against an industrial agent (representing either an applicant or employer) in unfair dismissal proceedings if:
- the industrial agent has failed to file a certificate required by s.90A of the Industrial Relations Act 1996, or
- the Commission finds that the industrial agent has reasonable grounds for believing, on the basis of provable facts, that the applicant's claim or the employer's response had a reasonable prospect of success when the agent did not have reasonable grounds for believing, on the basis of provable facts, that it had reasonable prospects of success.
Time for dealing with costs
The Commission may in any proceedings exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings (Part 12.1 of the Industrial Relations Commission Rules 2009).
Part 6 of Chapter 2 of the Industrial Relations Act 1996 (the Act) deals with unfair dismissals.