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Unfair Dismissals - Frequently Asked Questions



Application Form
Q1. How can employees find out whether they are covered by the State or Federal system?
Employees should check their award by telephoning:
    State Award Enquiries: 131 628
    Federal Award Enquiries - Fair Work Online: 131 394

Q2. Can award-free employees file claims?
If an employee is not covered by an award or agreement, but is employed by the NSW State Government or by Local Government, an application may be filed if the annual remuneration is less than $129, 300.

Q3. What is remuneration?
Remuneration is a broad concept and has been held to include superannuation and private use of a motor vehicle. In appropriate circumstances it has also been held to include bonuses, commission, provision of a mobile phone, but not overtime. Parties should seek their own advice concerning this.

Q4. How does an applicant correctly identify employer/respondent?
The onus is on the applicant to correctly identify their former employer. For State and Local government employees the easiest way to ascertain this information is from your payslip..

Q5. What remedies are available to an applicant filing an unfair dismissal claim?
Remedies include reinstatement, re-employment and/or compensation.

Q6. How much compensation can an applicant claim?
Compensation is not to exceed 6 months of an applicant's remuneration immediately before being dismissed. The amount received will vary in each case and depend on various factors including, for example, whether the applicant made a reasonable attempt to find alternative employment.

Q7. Can an applicant claim unpaid entitlements at the same time as an unfair dismissal claim?
A union can make an application for a small claim (up to $10,000) during unfair dismissal proceedings. Individual applicants may make an application to the Chief Industrial Magistrate's Court which can be contacted on (02) 9287 7832.

Q8. What should an employer do when he/she receives notification of an unfair dismissal listing before the Commission?
An employer has a right of reply and should file Form 7x - Employer's Reply with the Registry. A filed copy should be sent to the applicant. The employer should also file and serve a Form 37 -Notice of Appearance. More>>

Representation
Q1. Can parties be represented?
Parties may appear on their own behalf or may be represented by a union, employer organisation, friend or family member or may, subject to the leave of the Commission, be represented by a lawyer or an industrial agent.

Q2. Do parties need representation?
Representation is not compulsory and it is up to individual parties to decide whether he/she wishes to be represented.

Q3. Does the Commission help parties during conciliation or arbitration?
No, the Commission's role is to act as an independent third party to help develop possible solutions.

Q4. How do parties find a lawyer to represent them?
The Registry cannot give names of lawyers, however the Law Society of NSW may be contacted for the names of solicitors practising in the area of employment law. Assistance and advice may be available from community legal centres, unions, and employer organisations. More information about Representation and Legal Advice.

Conciliation
Q1. Can parties bring a friend/ family member to conciliation?
Yes, an applicant or respondent can bring someone along either as a representative or for general support.

Q2. Can witnesses be brought to conciliation?
Witnesses are not required at conciliation

Q3. What are likely outcomes of conciliation?
  • The outcome of conciliation may be a settlement between the parties or the application may be withdrawn. Settlement may involve some or all of the following:
  • a negotiated return to work;
  • a financial settlement;
  • a letter of reference or statement of service
  • undertakings that the parties will not denigrate each other in the future.

Q4. What happens if an amount of compensation is agreed to but the employer takes tax out of the agreed amount?
It is suggested that parties ensure that the agreed amount is specified as either a gross or net amount. Either the employer or employee will have to pay the tax at some stage.
Enquiries may be made to the Taxation Helpline on 131 020

Q5. What happens if the settlement is not complied with?
The Commission may make consent orders to be enforced in the Local Court.

General Questions
Q1. Are sub contractors able to file unfair dismissal applications?
No, only state or local government employees are able to make unfair dismissal applications to the State Commission. Sub-contractors should seek advice from a solicitor or a union about possible action they may be able to take.

Q2. If an employee is forced to resign, can an unfair dismissal be filed?
It depends on the circumstances. Where a resignation can be categorised as a constructive dismissal the Commission may be able to hear the claim. For example if an employer's actions caused the employee to resign, the resignation may constitute a constructive dismissal.

Q3. If an employee is made redundant can he/she make an unfair dismissal claim?
An employee may not be genuinely redundant, for example, the position may still exist. If this is the case, a claim may be made. If an employee is genuinely redundant, a claim may also be made if the employee can show that he/she has been selected unfairly for the redundancy.

Q4. What does the Commission consider when determining an unfair dismissal claim?
The Commission may take into account whether a reason for dismissal was given, whether the reason had a basis in fact, whether the applicant was given an opportunity to give an explanation, whether a warning was given and any other relevant matters.


Q5. Does an employer have to give 3 written warnings before dismissal?
No. There is no legislative requirement that 3 written warnings be given. A dismissal may be found to be unfair if no warnings at all are given.

Q6. What can an employee do who is dismissed while on Workers Compensation?
The employee may be able to file an unfair dismissal application or an Application for Reinstatement of Injured Worker.

Click on the links below to download the Guide to Making an Application for Reinstatement of Injured Worker and Form 59 - Application for Reinstatement of Injured Worker:

 Document Name 
Download 
Download 
Guide to Making an Application for Reinstatement of Injured Worker
Form 59 - Application for Reinstatement of Injured Worker

Further information may be sought from the Industrial Registry on 9258 0866

Q7. Can Registry staff give advice to parties about the strength of their case?
No. Registry staff cannot advise about the merits of a case. Parties should seek their own independent advice.

Q8. What happens if one of the parties does not turn up to a conference or hearing?
The Commission will consider the reason for the non-attendance. It may hear and determine the matter in the absence of that party.

Appeals
Q1. What happens if one party is unsuccessful after an unfair dismissal hearing?
An unsuccessful party may appeal to the Full Bench of the Commission. An appeal may only be made with the leave of the Full Bench.

Q2. What does a party have to do to file an appeal to the Full Bench?
An appeal must be filed with the Industrial Registry within 21 days of the decision appealed against. If the appeal is filed more than 21 days after the date of the decision an application to extend time is required.

Click on the links below to download the appeal forms:

 Document Name 
Download 
Download 
Form 28 - Application for Leave to Appeal and Appeal
Form 29 - Appeal Where Leave Not Required
Form 30 - Application to Extend Time to Appeal



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