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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 :
he or she may be eligible to make an application for relief from alleged unfair dismissal.
This may include:
Apprentices and trainees may contact the Apprenticeships & Traineeships Hotline on 132 811 for information about termination of their apprenticeship.
To make a claim, applicants must fill in an application form and file it at the Industrial Registry, Level 10, 10-14 Smith Street, Parramatta. Applications may also be filed online or at any NSW Local Court (except Central Local Court. The application can be lodged online, in person or by mail and through your solicitor, agent or union representative.
A fee must be paid when a claim is filed. Please refer to https://www.irc.nsw.gov.au/practice-and-procedures/fees.html. 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/courtlocations
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:
Before filing the application, applicants should ensure that all the questions on the application form have been completed.
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.
The Registry will post to the employer (respondent) at the address provided on the application form the following:
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 7B, Employer's Response, Form 37, Notice of Appearance and Guide to Conciliation :
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:
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:
These documents are also available on request from the Registry.
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 may only award costs:
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 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).
15 Aug 2023
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