Unfair Dismissal

An unfair dismissal is a termination of employment that is a harsh, unjust or unreasonable.¹ It includes a threat of unfair dismissal.²

Who can lodge an application?

The Industrial Relations Commission of New South Wales (Commission) can hear unfair dismissal claims made by an employee of a public authority and a member of the Public Service, civilian employees of the NSW Police Force, the NSW Health Service or the Teaching Service. Employees of NSW Local Governments can also apply to the Commission.

Employees of the Australian Government and employees of private sector businesses and community organisations cannot make an unfair claim to the Commission but may be able to make a claim to the Fair Work Commission.

An industrial organisation can file an application on behalf of individual members or a group of employees who were dismissed at the same time or for related reasons.³

Section 83 of the Industrial Relations Act 1996 (NSW) (IR Act) lists circumstances where an employee may not be able to make an application, including when:

• a person is engaged under a contract of employment for a specified time frame, for a specific task or on a casual basis for a short period and their contract is not renewed;
• an employee is dismissed during a period of probation or qualifying period for unsatisfactory performance;
• the terms and conditions of employment are governed by special arrangements regarding termination; or
• any other circumstances listed in Chapter 2, Part 6 of the IR Act.

How do you file an application?

An Unfair Dismissal Application (Form 7A) should be filed through the NSW Online Registry.  If the application cannot be filed online, the form can be emailed or delivered in person or by post to the Registry at the Commission.  Once filed, a copy of the application must be sent, by the applicant, to the employer.

When do you need to lodge your application?

The application must be filed no later than 21 days after the dismissal.  A person can request a time extension, and the Commission may determine the reasons given are sufficient to accept a late application.⁴

Who will consider the application?

The Commission will attempt to settle the matter through conciliation after the application is filed.⁵ If conciliation is unsuccessful, the matter will be scheduled for arbitration, where a Member of the Commission will conduct a formal hearing, consider the evidence and make a decision.⁶  

Section 88 of the IR Act lists issues to be considered during arbitration when determining a claim including whether:

• the applicant refused reinstatement or re-employment with the employer;
• the reasons given have a basis in fact;
• the applicant was given an opportunity to respond;
• a warning of unsatisfactory performance was given before the dismissal;
• the nature of the duties immediately before the dismissal;
• there was a request for reinstatement or re-employment with the employer; and
• any other matters as the Commission considers relevant.

What can the Commission do?

The Commission may dismiss the application or issue an order to:⁷

• reinstate the employee;
• re-employ the person in another suitable position within the organisation;
• recognise the period between the worker’s dismissal and reinstatement or re-employment as a continuous period of employment;
• remunerate the employee for the period between filing the application for unfair dismissal and being reinstated in accordance with the Commission’s order;
• instruct the employer to pay compensation if reinstatement or re-employment is not reasonable; or
• order the employer not to dismiss the employee, in relation to a threat of dismissal.

Can the Commission’s decision be appealed?

The decision of the Commission can be appealed to the Full Bench of the Commission. 

^{1 Industrial Relations Act 1996 (NSW) s 84(1).; 2 Ibid s 83(5)(a).; 3 Ibid s 84(2)-(3).; 4 Ibid s 85.; 5 Ibid s 86.; 6 Ibid s 87.; 7 Ibid s 89.; 7 Ibid s 89.}