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Defending Unfair dismissal applications

Defending Unfair dismissal applications – If you terminate a employee there is always the possibility that the employee might submit an application to the FWC for unfair dismissal.

If an application is made an employer must respond to the application otherwise the FWC may regard the matter as being uncontested as it did in the matter of Antonarakis v Logan City Electrical Service Division P/L.

In this matter the applicant was dismissed after allegations that he was seen working for himself for cash while employed by respondent, the applicant argued he was helping friend repair pool fence at relevant time

Following the applicant making an application to the FWC in regard to unfair dismissal multiple attempts were made by Commission to notify respondent of proceedings by way of emails, letters and telephone calls.

Commission Simpson was satisfied respondent was aware of application and had ample opportunity to respond, however had chosen not to do so,  on that basis Commission treated application as uncontested. The respondent was found not to have complied with Small Business Fair Dismissal Code.

The Commissioner could not be satisfied that the respondent believed on reasonable grounds that applicant’s conduct was ‘sufficiently serious to justify immediate dismissal’. If the dismissal could have been regarded as with notice, applicant had not been warned, given an opportunity to respond, nor given a valid reason as to why his employment was at risk.

The Commission accepted that applicant had not done a cash job and found no valid reason for termination as the Service Manager and Managing Director had notified applicant of reason for termination, but each accused the other of witnessing alleged conduct and being decision maker. It was found that the applicant was denied procedural fairness and as a result the dismissal was harsh, unjust and unreasonable.

It was considered that reinstatement was inappropriate, compensation of $19,640 gross taxed, plus 9.5% superannuation was ordered.

Also remember timely and professional workplace investigations into misconduct may strengthen your case.

Defending Unfair dismissal applications
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Unfair Dismissal Fair Work Commission Recently

Unfair Dismissal Fair Work Commission Recently

The recent case of Amanda Olesen v Needlework Tours Pty Ltd illustrates some importance considerations for employers when dismissing employees

In this case, applicant Ms Olesen expressed an intention to start own business in meeting with respondent. Ms Olesen used social media and business networking sites to promote new business.  The respondent Needlework Tours stated that they believed applicant was working for new business during work hours.

The Commission found no evidence that suggested that applicant was operating own business or not working as directed and therefore found no valid reason for termination.  In evidence the applicant contented that her employment was terminated via text message and was not notified of reason until after termination and was also not given the opportunity to respond to reason for dismissal.

The Commission considered the Small Business Fair Dismissal Code and found that the fraud allegations were without substance, It also held that a lack of HR expertise and small size of business no excuse for failure to give applicant opportunity to respond

Commissioner Ryan held

“Having taken into account each of the matters referred to in paragraphs (a) to (g) of s.387 and being satisfied that there are no other relevant matters needing to be considered under s.387(h) the Commission decides that the dismissal of Ms Olesen from her employment with the Respondent was harsh and unjust and unreasonable. It was harsh because Ms Olesen had not engaged in the alleged misconduct. It was unjust because Ms Olesen was denied procedural fairness by Mr Laughlin and was given no opportunity to defend herself. It was unreasonable because it was the result of a significant exercise of prejudging an outcome without making any reasonable attempt to apply the principals of a fair go all round.”

Lesson for employers

  • In matters of fraud, potential fraud a careful investigation is recommended to ensure that the misconduct occurred and that the employer is in possession of sufficient evidence to support their claims.
  • Procedural fairness and the right to respond to allegations should be considered to be ‘set in stone’
  • A professional and timely investigation by an expert can save time, money and stress
  • If in doubt call an expert – http://awpti.com.au/investigations/

Unfair Dismissal Fair Work Commission Recently

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Workplace Investigation Terminations Unfair dismissal

Workplace Investigation Terminations Unfair dismissal

The recent decision of Jay Higgins Coles Supermarkets Australia Pty Ltd T/A Coles at the Fair Work Commission highlighted the importance for employers about being clear about the reason for the dismissal.

In this matter, Coles submitted that the explicit text messages sent by Mr Higgins resulted in a serious breach of the Code and Equal Opportunity Policy (EO Policy). Specifically, that by sending the explicit text messages to his supervisor Mr Lacey, Mr Higgins engaged in behaviour that was considered to be harassment due to its offensive and sexual nature. Coles submitted this resulted in a serious breach of his duty to treat everyone with dignity, courtesy and respect.

Mr Higgins submitted that when taking into account the context in which the text messages were sent, it could not be satisfied that he engaged in conduct amounting to sexual harassment towards Mr Lacey. Mr Higgins relied on the section of the Equal Opportunity Policy that states as follows:

“Behaviour that is based on mutual attraction, friendship and respect is not likely to be sexual harassment, as long as the interaction is consensual, welcome or reciprocated.”

Mr Higgins submitted that he and Mr Lacey had a personal friendship outside of work, and that the explicit text messages were sent on a personal level to Mr Lacey on private phones outside of work hours. Mr Higgins submitted he had sent messages of a similar nature to Mr Lacey in the past, and Mr Lacey had found such images amusing. Mr Higgins submitted that the images he sent on 5 September 2016 were not unwanted, but rather were endorsed by Mr Lacey. Mr Higgins also submitted that Mr Lacey’s response to the first text message on 5 September encouraged him to send further text messages.

When the manager responded negatively to the image of a penis in a bike chain, Mr Higgins did not sent any further images.

As a result, the commissioner found the conduct did not fall within Coles’ definition of sexual harassment, which excluded behaviour based on friendship as long as it was “consensual, welcome or reciprocated”.

But he found sending such explicit images was “clearly conduct inconsistent with the requirement of the code to treat others with dignity, courtesy and respect”.

Together with Mr Higgins’ lack of contrition and aggressive comments to his supervisor after he was warned over the images, he concluded Coles had a valid reason for dismissal and found the dismissal was not unfair.

Commissioner Simpson held that “The fact that Mr Higgins refused to acknowledge that this conduct could ever be inappropriate if sent from a private mobile phone, leads me to accept Coles’ submission that it cannot reasonably hold confidence in Mr Higgins’ ability to comply with its core values. I am satisfied Mr Higgin’s misconduct was serious.”

In this case it was found that Coles had a valid reason for the dismissal other than the initially alleged sexual harassment. Had Cole gone alone with the sexual harassment allegation the outcome may have been different.

Lesson for employers

  • Be careful when investigating matters such as sexual harassment that the behaviour is consistent with the definition of sexual harassment.
  • Be careful that organisational policies reflect the accepted or legislated definition of misconduct, bullying, harassment and sexual harassment.
  • If you are unsure call in an expert – http://awpti.com.au/investigations/
  • Ensure that all employees undertake training in what is and what is not misconduct, bullying, harassment and sexual harassment – http://awpti.com.au/employee-training/

Workplace Investigation Terminations Unfair dismissal

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Summary dismissal is it justified

Summary dismissal is it justified?

In matters involving serious misconduct and summary dismissal it is important for employers to understand what constitutes each and when it is appropriate to summarily dismiss. Failure to reach the requisite standard can result in a successful unfair dismissal application.

Ian Nieuwpoort v South West Transit Group Pty Ltd – Fair Work Commission Perth 22 September 2017

In a recent matter before the Fair Work Commission the applicant Mr Ian Nieuwpoort was employed as bus driver. The case involved the applicant driving with expired driver’s licence, he became aware licence had expired when requested to produce it for examination.

He advised his supervisor he was in possession of expired licence and would ask wife for renewed licence at home. The applicant left message for wife and then departed depot undertaking driving duties without confirmation that his driver’s licence had been renewed.

The applicant called into meeting two days later and dismissed he claimed respondent South West Transit Group Pty Ltd had already determined would be dismissed summarily prior to meeting and respondent not interested in his explanation

The applicant’s case was that when advised that his driver’s licence appeared to not have been renewed respondent allowed applicant to complete driving duties for day, he was not contacted by respondent asking him to stop driving or return to depot during shift.

He claimed that his actions were neither wilful nor deliberate and that he acted immediately to renew driver’s licence once it was drawn to his attention that it had expired.

The respondent submitted that applicant was terminated based on valid reason and that he was provided with opportunity to respond to allegation of driving on expired driver’s licence.

The applicant submitted that Road Traffic Act 1974 (WA) (RT Act) provides an exemption to offence of driving while not authorised ‘because the licence expired’ and grace period of six months to continue driving without committing offence.

At the FWC DP Bull found that applicant’s driver’s licence no longer current until further renewed within six-month period with effect from date of renewal and rejected the argument that the Act provides for exemptions or grace period.

The Commission satisfied valid reason for dismissal in that driving motor vehicle without current driver’s licence an offence and therefore amounted to serious misconduct however it accepted that decision to drive made spur of moment while applicant was in state of shock rather than action taken designed to destroy employment relationship in wilful manner.

The FWC found that the applicant demonstrated remorse for actions and had an unblemished employment record of seven years and age taken into consideration

The Commission found despite finding of valid reason, Commission found actions of applicant did not justify summary dismissal and therefore the dismissal was unfair based on its summary nature. The Commission held compensation should be ordered in the amount of payment of five weeks wages being Mr Nieuwpoort’s entitlement based on his termination of employment with notice.

Some questions arise from this matter;

  1. Why was Mr Nieuwpoort allowed to drive the bus on the day it was discovered that his licence had expired?
  2. Why wasn’t it checked that the licence had been renewed prior to Mr Nieuwpoort taking the bus out?
  3. Why did South West Transit Group summarily dismiss Mr Nieuwpoort two days later. Summary dismissal indicates some sort of urgency is required to prevent injury or harm to the business or it’s employees
  4. Why wasn’t Mr Nieuwpoort unblemished record of service taken into account?

Summary dismissal is it justified – Lesson for employers

  1. Understand what summary dismissal and serious misconduct are and what the thresholds are – have a look at this article for more details – http://awpti.com.au/summary-dismissal-2/
  2. Don’t try and save the 4 weeks pay, it not worth it in the long run.
  3. If your managers and HR professionals are unsure get some training –  http://awpti.com.au/investigation-training/

Full text of the case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc4887.htm

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Summary dismissal

Summary dismissal – Do you have the grounds

In light of the  XL Express Pty Ltd decision at the Fair Work Commission, I think it’s time to review Summary Dismissal. (More about XL Express here – http://awpti.com.au/unfair-dismissal-serious-misconduct-workplace-investigation/

Summary dismissal is dismissal without notice. It does not require advance notice to the employee and wages are only paid to the time of dismissal. An employer has a legal right to summarily dismiss an employee without notice for serious misconduct or other conduct which justifies such dismissal.

Employers should always think very carefully and thoroughly consider the options before making a decision to immediately or “summarily” dismiss an employee. For summary dismissal to be lawful there must have been a breach by the employee of either an express or implied term of the contract of employment that is serious enough to necessitate an employer to undertake an action of summary dismissal.

I recommend before summary dismissal action is taken employers do the following:

  • Investigate the matter carefully to ensure that you have enough information and evidence upon which to make your decision. If the presence of the subject employee in the workplace causes concern consider suspending them until the conclusion of the investigation.
  • Review the employee’s record. Does this person have a long history with the company? Is this person a first or repeat offender? These are matters that could be taken into account.

Summary dismissal of a long standing employee with a good or unblemished record can be problematic.
Your options should be carefully considered

  • Review your options. Would dismissal with notice be a better option? What are other options – demotion, counselling or training?
  • Don’t allow the fact that you may save some money by summarily dismissing an employee to affect your judgement. This course of action could be more costly in the long run.
  • Resist the temptation to ‘make an example’ of instances of employee negligence with summary dismissal. It is always best to ensure that disciplinary action is fair and thorough and that the outcome is proportionate to the conduct that has occurred.

Here are some cases that highlight differing views of summary dismissal:

In Bruce v AWB Ltd [2000] FCA, the Federal Court of Australia stated that mere misconduct is not considered as sufficient grounds to warrant immediate dismissal. For a summary dismissal to be lawful the employee’s conduct must be judged serious enough that summary dismissal is the only option.

In Concut Pty Ltd v Worrell [2000] HCA 64, Kirby J stated that it is “only in exceptional circumstances” that an employer is entitled to dismiss an employee summarily. His Honour went on to state that generally, acts of dishonesty of similar conduct that destroys the mutual trust between the employer and employee fall within the class of conduct which would allow a lawful summary dismissal.

In Smith v Aussie Waste Management Pty Ltd [2015] FWC 1044 (Smith), the FWC ruled that swearing at a managing director during a heated phone call was not sufficient cause for summary dismissal. The FWC ruled that the conduct was not ‘sufficiently insubordinate’ for him to be dismissed because the conversation was not overheard by other employees, meaning it had not undermined the managing director’s authority in the workplace.

On the other hand:

In John Pinawin t/a RoseVi Hair Face.Body v Edwin Domingo [2012] FWAFB 1359 the Full Bench accepted that the summary dismissal of a hairdresser whose work performance was adversely affected by his drug use was fair, but warned the same conclusion would not necessarily be reached in all cases of out-of-hours misconduct – an issue on which the Full Bench made some interesting observations that pertain to all employers.

In Lloyd & Co Pty Ltd v Shuttle ([2016] FWCFB 144) the employee had sent a series of emails to other staff members that were highly critical and disparaging of the managing director.

The Commission ruled that the managing director’s feelings of betrayal as a result of the employee’s personal hostility and disloyalty were reasonably held. The managing director had direct evidence of disloyalty in the form of the emails

As you can see summary dismissal is not cut and dry, I recommend careful and expert investigation of misconduct incidents that could result in summary dismissal.

The peace of mind of getting it right outweighs the cost of an expert investigation.

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from a suitably qualified and experienced workplace investigator.

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Unfair dismissal hearing participation

Unfair dismissal hearing participation – As an employer facing an unfair dismissal application it is important that you participate in the process, you can’t argue against a judgement if you are not presents at the hearing. The Commission will still proceed with the matter in the absence of the respondent.

Melim v Construction Staff NSW

TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for relief from unfair dismissal

The Applicant was employed as a permanent full-time concrete patcher. On 22 July at the request of his supervisor, the Applicant commenced leave due to a “shortage of work”. However, he received no further call.

After a number of calls, including to the CFMEU, he was offered work on a job at Mascot. This was done by a director of the employer. He commenced work on 24 August 2016. On 31 August, the Applicant stated that he had cleaned up some unset concrete, as instructed.

On 1 September, he was told by the foreman and subsequently the director, on the telephone, that he was no longer required. The Applicant says that he was given no proper explanation for his dismissal other than an email that attached a separation certificate which referred to “shortage of work”. The Applicant denies that his work on 31 August was in any way substandard.

The respondent submitted an F3 form stating applicant was terminated on 31 August 2016 because he refused to clean up unset concrete as instructed by his supervisor.

Subsequently the respondent did not participate in the hearing.

The Commission found no valid reason for dismissal, no notification of a valid reason or an opportunity to respond. The Commission found the termination was harsh and unjust and ordered compensation of $12,433.60.

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc2207.htm

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Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

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Warnings, termination, unfair dismissal

Warnings, termination, unfair dismissal – It is important if as an employer you are going to rely on past warnings when terminating a employee, that the warning/s are relevant to the reasons for termination, failure to do so could see the Fair Work Commission hold the the termination was unfair as it did in the case of Taylor v Qube Ports P/L t/a Qube Ports (See below)

“The issue of tolerance of poor behaviour or performance is among the most delicate issues that managers and HR managers will face with employers weighing up questions of fairness, due diligence, productivity and workplace harmony – as well as legal aspects.

One potentially awkward scenario is when an employee has received official warnings that are dated or have expiry dates, that the employee duly sees out, only for the sub-par behaviour or performance to return soon after these dates.

The question is, how viable is it for an employer to refer back to expired warnings or a letter dated older than six month as grounds for further action or even dismissal?

It is important to remember if terminating or disciplining an employee not to confuse the purpose of warning letters, for example;

  • Previous warning letters that relate to behavioural issues or misconduct cannot relied on in cases of poor performance and vice versa.
  • If an employee breaches a safety guideline, process or procedure you cannot rely on a previous warning letters for unrelated behavioural or poor performance issues.”

Excerpt from the AWPTI Reasonable Management Action manual – http://awpti.com.au/reasonable-management-action-manual/

Warnings, termination, unfair dismissal – Taylor v Qube Ports P/L t/a Qube Ports

TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal

The applicant Mr Taylor was terminated for breach of a lawful and reasonable direction given by employer regarding loading of ship on 1 July 2016.

Evidence was provided that the applicant had received three prior warnings for threatening behaviour and failing to follow company procedure.

Mr Taylor submitted that on 1 July 2016 the breach was not deliberate and that he was under a lot of pressure that day. In response Qube argued that applicant’s submissions in relation to nature or quality of breach was irrelevant to question of valid reason and stated that that applicant knew about procedure and decided consciously and wilfully not to follow it.

The Commission found applicant breached company procedure and that he was familiar with it but as it was an isolated event and that it did not constitute a valid reason for dismissal and that the prior warnings were not relevant as they were dubious factually with dubious processes.

The Commission found in favour of the respondent that applicant’s previous warnings should be taken into account but only to the extent of whether or not the incidents (relating to the warning) had occurred but not relevance to the dismissal.  The Commission found dismissal was harsh, unjust or unreasonable, that reinstatement inappropriate. Compensation of $18,225.80 less taxation was ordered.

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc2238.htm

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FWC High Income Threshold Decisions

FWC High Income Threshold Decisions – to satisfy the provisions of the Fair Work Act and to be able to claim relief via the Fair Work Commission an employee must earn under the High Income Threshold, currently set at $138,900.00 per annum.

FWC High Income Threshold Decisions
Scarborough v Sandfire Resources NL t/a Sandfire Resources NL

TERMINATION OF EMPLOYMENT – high income threshold – modern award coverage – ss.382, 394 Fair Work Act 2009

This decision concerns an application made by Mr Nigel Scarborough for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in respect of his employment by Sandfire Resources NL T/A Sandfire Resources NL (Sandfire).

Mr Scarborough argues that his employment was covered by the  Manufacturing and Associated Industries and Occupations Award 2010 (manufacturing award) or the Mining Industry Award (mining award) and therefore he was protected from unfair dismissal under s.382(b)(i) of FW Act

Sandfire contended that Mr Scarborough was not protected from unfair dismissal on the basis that his annual rate of earnings exceeds the current high income threshold and the applicant’s employment is not covered by a modern award or enterprise agreement

The Commission held that the respondent business did not operate in the manufacturing industry, but in the mining industry, and so the applicant was not covered by the manufacturing award – held that the applicant was a supervisor, but that supervisors are not covered by the mining award [Fry], [McMillan and Norman]

The commission held that applicant was therefore not a person protected from unfair dismissal, as he was above the high income threshold and was not covered by and enterprise agreement or award, the application was dismissed.

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc947.htm

FWC High Income Threshold Decisions
St George v Gold Coast Turf Club Ltd t/a Gold Coast Turf Club

TERMINATION OF EMPLOYMENT – high income threshold – modern award coverage – ss.382, 394 Fair Work Act 2009

The decision arises from an application by Mr Dale St George for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 Mr St George was the Chief Executive Officer of the Gold Coast Turf Club Limited.

The Turf Club objected to Mr St George’s application on the basis that it alleged that Mr St George’s earnings were more than the high income threshold.

The Turf Club submitted that Mr St George is not covered by the Award on a number of bases:

  • The employment agreement entered into explicitly states that the position of CEO is considered to be Award free;
  • The Award does not cover employers in the Racing industry;
  • The Turf Club does not fall within the definition of “Club” in the Award; and
  • The classification definitions submitted do not apply to a manager at CEO level.

Mr St George submitted that he is covered by the Award because:

  • The Turf Club is a “Club” as defined in the Award;
  • The principal purpose of the position held by Mr St George falls within the classification definition of “club manager” in the Award and, more particularly, a ‘Level G manager’; and
  • The Award contemplates high income club managers by the inclusion of provisions exempting certain managers from Award entitlements where they earn more than 50% above the minimum.

The Commission found respondent (Turf Club) operates for benefit of members, however, it was not not persuaded that a club that promotes and holds racing events is conducted for the benefit of the community.

The Commission was not satisfied that the respondent is a ‘Club’ within definition of the Award and held that even if wrong in that conclusion, the respondent is not covered by operation of the exclusions in coverage of the Award.

The Commission not satisfied applicant was covered by modern award and therefore the applicant was a person protected from unfair dismissal, the application was dismissed.

Senior Deputy Commissioner Drake stated

“I am satisfied and find that the sum of Mr St George’s annual rate of earnings is not less than the high income threshold. It is agreed that no enterprise agreement applies to Mr St George. I am not satisfied that Mr St George is covered by a Modern Award. Therefore, I am satisfied that Mr St George is not a person who was protected from unfair dismissal at the time of his termination of employment. On this basis his application must be dismissed.”

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc451.htm

FWC High Income Threshold Decisions
Wigglesworth v Warringah Plastics P/L

TERMINATION OF EMPLOYMENT – high income threshold – ss.332, 382, 394 Fair Work Act 2009

Mr Michael Wigglesworth (Applicant) applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). The Applicant was employed in the position of Business Development and Accounts Manager for the states of Victoria and South Australia with Warringah Plastics Pty Ltd (Respondent) commenced that position on 1 July 2015.

The Applicant was advised of the dismissal by letter on 8 July 2016. It was not in dispute that the Applicant’s employment was terminated by the Respondent on 8 July 2016 effective immediately.  Although the dismissal was effective immediately, the Termination Letter made it clear that the Applicant would receive one months’ pay in lieu of notice.

The Termination Letter provided that “our decision is based solely on a commercial basis in that the business you brought across from Kema Plastics is not sufficient to justify a full time Account Manager and with no significant new business generated since your commencement, we have no option other than to server our ties”.

The Respondent maintained that at the time of the his dismissal, Mr Wigglesworth’s employment was not covered by a modern award or enterprise agreement, and he earned more than the high income threshold and was therefore is unable to make an application for an unfair dismissal remedy. The Respondent also contended that Mr Wigglesworth was not covered by a modern award or that no enterprise agreement applied at the time of his dismissal, this matter was not in dispute.

The Commission satisfied that at the time of the applicant’s dismissal, his guaranteed salary was $120,000.00, he received a vehicle allowance of $15,000.00 and that other amounts sought to be included by respondent do not form part of the sum or amount contemplated by s.382(b)(iii) of Fair Work Act

The Commission found as a result that the total of $135,000.00 was less than the high income threshold and that the applicant is a person protected from unfair dismissal.

The respondent’s jurisdictional objection dismissed, the application was to proceed in the normal way.
Link to case- https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc7555.htm

In the subsequent unfair dismissal hearing Commission found that Mr Wigglesworth’s dismissal was unfair inn that it was was both unjust and unreasonable to dismiss him without procedural fairness.  Reinstatement not sought compensation of $7,993.44 was awarded.
Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc1266.htm

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Unfair dismissal NSW Government employees

Unfair dismissal NSW Government employees – If you are employed by the NSW Government or a local council you are not covered by the provision of the Fair Work Act and therefore you cannot make an unfair dismissal application to the Fair Work Commission, so what can you do?

You can make an application to New South Wales Industrial Relations Commission and here is how you do it

Unfair dismissal NSW Government employees – Who Can Make an Unfair Dismissal Claim?

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:

  • a state public sector employee
  • a local government employee

If an employee is employed by one of these types of employer and is :

  • either covered by a State industrial award or enterprise agreement
  • or is award free and earns no more than $138,900

he or she may be eligible to make an application for relief from alleged unfair dismissal.

This may include:

  • some casual employees;
  • employees who have been forced to resign;
  • employees who have been dismissed while on workers compensation.

Unfair dismissal NSW Government employees – Who may not be able to file a claim?

  • employees of private sector employers if dismissed after 1 January 2010
  • apprentices or trainees;
  • independent contractors;
  • employees on a 3 month probation period if determined in advance;
  • some casual employees;
  • employees on contracts of employment for a specified period of time less than 6 months;
  • employees engaged under a contract of employment for a specific task.

Apprentices and trainees may contact the Apprenticeships & Traineeships Hotline on 132 811 for information about termination of their apprenticeship.

Unfair dismissal NSW Government employees – What can the Commission do?

Where the Commission upholds a claim, it may order an employer to:

  • reinstate the employee to their former position
  • re-employ the employee in another position that the employer has available
  • provide back pay and other entitlements owing from the time of the dismissal, where reinstatement or re-employment is ordered
  • compensate the employee by ordering payment of an amount not exceeding the remuneration of the employee during the six months before the dismissal, where reinstatement or re-employment is considered impracticable
  • not dismiss the employee, where dismissal has been threatened.

More information about the New South Wales Industrial Relations Commission here –
http://www.irc.justice.nsw.gov.au/Pages/IRC_about_us/IRC_about_us.aspx
http://www.irc.justice.nsw.gov.au/Pages/IRC_procedures_legislation/IRC_procedures_legislation_ud.aspx#Makeclaim

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Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

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