Unfair dismissals - Frequently Asked Questions

Employees should check their award by telephoning: 

• State Award Enquiries: 131 628
• Federal Award Enquiries - Fair Work Online: 131 394

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 $148,700. 

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.

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..

Remedies include reinstatement, re-employment and/or compensation.

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.

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.

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.

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.

Representation is not compulsory and it is up to individual parties to decide whether he/she wishes to be represented.

No, the Commission's role is to act as an independent third party to help develop possible solutions.

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.

Yes, an applicant or respondent can bring someone along either as a representative or for general support.

Witnesses are not required at 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.

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.

The Commission may make consent orders to be enforced in the Local Court.

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.

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. 

Download the appeal forms:

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

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.

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. 

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.

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.

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.

The employee may be able to file an unfair dismissal application or an Application for Reinstatement of Injured Worker.

Download the following guides and forms:

• Guide to Making an Application for Reinstatement of Injured Worker
• Guide to Making an Application for Reinstatement of Injured Worker
• Form 59 - 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.

No. Registry staff cannot advise about the merits of a case. Parties should seek their own independent advice. 

The Commission will consider the reason for the non-attendance. It may hear and determine the matter in the absence of that party.