Victimisation

If a state public sector employee or local government employee thinks that they have been victimised by their employer or industrial organisation, they may be able to make a victimisation claim to the Industrial Relations Commission of New South Wales (Commission).

A private sector employee cannot make a victimisation claim to the Commission. They may be able to make a claim in the Fair Work Commission.

• Information about Industrial Relations Commission or Fair Work Commission?
• Fair Work Commission website.

Current and prospective public sector or local government employees are protected from victimisation under section 210 of the Industrial Relations Act 1996 (NSW) (IR Act).  An employer or industrial organisation must not subject or threaten to subject an employee to any detriment because (or for reasons that include) that they:

• joined or refused to join an industrial organisation;
• as a member of a registered union or association of workers, engaged, proposed to engage in, or refused to engage in, industrial organising activities¹ such as:
  • organising or promoting a lawful activity for or on behalf of their union;
  • encouraging or participating in a lawful activity organised or promoted by their union;
  • participating in industrial action organised or promoted by their union;
  • complying with a lawful request made by or requirement of their union;
  • representing or advancing the views, claims or interest of their union; or
  • seeking to be represented by an industrial organisation;
• are an elected representative of employees or have an official role or responsibility under an award or legislation;  
• are entitled to a benefit or claim a benefit under an award, an enterprise agreement, industrial relations legislation or the workers compensation legislation;
• made a complaint or enquiry in relation to their employment, or in relation to a work, health and safety matter;
• reported an alleged breach of an award or an enterprise agreement by their employer;
• participated in proceedings before the Commission or the Industrial Court;
• engaged in public or political activities that do not interfere with the performance of their duties;
• gave evidence in an investigation; or
• for any other reason listed under s 210 of the IR Act.²

An employer or industrial organisation causes “detriment” to an employee if they inflict upon the employee hardship, injury, loss or another disadvantage. For example, an employer could cause “detriment” to an employee if they dismiss, threaten to dismiss, or make a finding of misconduct against the employee. The hardship, injury or loss suffered by the applicant must be something which a reasonable person would consider to be a detriment³

Who can lodge an application?

A person who believes they have been victimised because of an employer or industrial organisation’s action can apply to the Commission for relief.⁴ An industrial organisation can also make an application on behalf of a member.

How does a person make an application?

Complete the IRC 19 - Application for Relief from Victimisation and file the form through the NSW Online Registry. Applicants can also file the form by email, post or in person at the Registry if the NSW Online Registry is experiencing technical difficulties.  The application must provide details about the alleged victimisation and the remedy being sought. 

How does the Commission consider the application?

The application will be allocated to a Member of the Commission for consideration. To be successful, an Applicant must establish to the Commission’s satisfaction that:

• they were an employee;
• the employer or industrial organisation took detrimental action against them;
• the employee had one of the protected characteristics listed in s 210 of the IR Act; and
• the employer or industrial organisation took detrimental action against them because of, or for reasons that include, the protected characteristic.  

Reverse onus of proof

If the employee satisfies the Commission that they have suffered detriment and that they have one of the protected characteristics under s 210 of the IR Act, and alleges that the reason (or one of the reasons) the employer or industrial organisation took the detrimental action was because of the protected characteristics, then s 213(5) of the IR Act creates a rebuttable presumption that the employee was victimised due to the protected characteristic. The employer or industrial organisation bears a “reverse onus” of satisfying the Commission that they did not take detrimental action against an employee for a prohibited reason.

For example, if an employee has satisfied the Commission that they engaged in, or proposed to engage in, industrial organising activities (a protected characteristic under s 210 of the IR Act), that they suffered a detriment (such as disciplinary action) and alleges that detriment was because of their actual or proposed involvement in the industrial organising activities, a rebuttable presumption is created that the protected characteristic was the reason that the employer imposed the detriment.

Rebuttable presumption

The employer can rebut that presumption if they can satisfy the Commission that the protected characteristic was not a substantial and operative reason for taking the detrimental action.⁵ The Commission will make an objective assessment of whether the protected characteristic is a substantial and operative reason for the employer’s decision to take detrimental action.⁶

If the employer or industrial organisation satisfies the Commission that the protected characteristic was not a substantial and operative reason for taking the detrimental action, the application of victimisation will fail. 

What can the Commission do?

Under s 213 of the IR Act, the Commission may make an order enforcing the protection against victimisation if it is satisfied that the employee has been victimised, including to:

• reinstate or re-employ an employee;
• promote or otherwise advance an employee in their employment;
• pay all or part of the money owed, lost or foregone;
• employ a prospective employee;
• not to threaten or carry out a threat to victimise an employee;
• instruct an industrial organisation, its officials, or employees to take or cease an action,
• make consequential orders; or
• take any other suitable action under the IR Act.

Is there a time limit to make an application?

An application must be filed with the Commission within 21 days after the alleged detrimental action.⁷ A person can request a time extension, and the Commission will consider whether there is a sufficient reason to grant the extension.⁸

Can the Commission’s decision be appealed?

Decisions can be appealed to the Full Bench of the Commission.  See ‘Appeals’ for further details.⁹

^{1 Industrial Relations Act 1996 (NSW) s 209A.; 2 Ibid s 210(1).; 3 See Grant v Commissioner of Police (No 2) [2025] NSWIRComm 1060.; 4 Ibid s 210(2).; 5 Ibid s 213(5)(b).; 6 Ibid s 213(5)(b)–(c).; 7 Ibid s 213(3).; 8 Ibid s 213(4).; 9 Ibid s 187.}