This article will walk you through the process of making claims for unfair dismissal in NSW Australia. We’ll cover everything you need to know, from what constitutes unfair dismissal to how to apply with the Fair Work Commission (FWC).
When life throws you a curveball, it can be hard to know what to do. If you’ve been unfairly dismissed from your job, you may be feeling lost and confused. But don’t worry, you’re not alone. Every year, thousands of workers in New South Wales, Australia face unfair dismissal from their jobs. It’s a fact of life, but that doesn’t mean it’s fair. If you are facing the issue of unfair dismissal, note that you have certain rights.
What Is Unfair Dismissal?
Unfair dismissal is an act of employment termination that the employer makes without a good reason; or is contrary to the country’s specific legislation. In NSW, Australia, unfair dismissal occurs when an employee has been unjustly or unreasonably dismissed. The FWC considers a dismissal to be unfair if it is satisfied that:
- the person has been dismissed,
- the dismissal was harsh, unjust, or unreasonable, and
- the dismissal was not a case of genuine redundancy.
Understanding your rights as an employee in NSW, Australia is essential for maintaining a fair and secure employment relationship. More specifically, understanding your rights as an employee helps you recognise when your employer has unfairly dismissed you, and take appropriate action such as making claims for unfair dismissal.
In some cases if an employee resigns they may still be eligible to make an unfair dismissal claim. This is when a ‘Constructive Dismissal ‘ occurs. A constructive dismissal is when the employee resigns, because of the conduct or actions of their employer.
Eligibility Criteria
The Fair Work Act protects eligible employees from losing their jobs in a range of circumstances. To be eligible for an unfair dismissal claim in NSW, Australia, you must meet certain criteria, as outlined in the Act. Here are the key eligibility requirements:
- Your employer must have dismissed you from your job or the job loss was not fair.
- The dismissal must have been harsh, unjust, or unreasonable.
- The dismissal must not have been a case of genuine redundancy.
- The employee was employed on a regular systematic basis and had a reasonable expectation of continuing their employment.
In addition to these requirements, there are also specific eligibility criteria that one must meet:
- You must have worked for the business for a minimum of 6 months in a large business or 12 months in a small business, and have been earning less than the high income threshold.
- You must earn less than $108,300 per year (unless covered by an award or enterprise agreement on the employment contract).
It is important to note that certain kinds of workers do not have access to remedies for unfair dismissal in NSW, such as some contractors, some casual employees, local government employees and some trainees.
Initiating Unfair Dismissal Claims
If you meet the eligibility criteria, you are now ready to initiate your claims for unfair dismissal. Any claims for unfair dismissal, whether in the Fair Work Commission or the NSW Industrial Relations Commission, need to be submitted within 21 days of a dismissal taking effect.
You can take the unfair dismissal eligibility quiz to help you determine your eligibility. However, if you’re not 100% sure whether you are eligible to file a claim, seek legal advice from a competent employment lawyer.
These are the common issues that the Commission deals with:
- An employee may be fired, made redundant or feel they have to resign and think it was unfair.
- An employer discriminates against his or her employees. For example, the employer made false claims about unsatisfactory performance of employees.
- An employee or an employer may experience bullying
- An employee may want to change from casual employee to part-time or full-time but the employer refuses to do so.
- When creating an agreement, the employer and employee representatives may not agree on what to include.
- An award contains the wages and conditions for employees under the award. An employer and an employee may disagree if they interpret the terms in different ways.
- A union or registered organisation may want to talk to employees in their place of work. The employer may refuse if they have no right of entry.
To apply for claims for unfair dismissal, you can do it in either of these methods:
- By post or personal submission. Fill up Form F2 completely. Here’s a sample application form. You can also post or deliver your application to the Commission office near you.
- Online. Lodge your form online. To start, click on Apply online and follow the prompts to log in or set up an account. Alternatively, email your completed form to lodge@fwc.gov.au.
Application Fee
The fee for claims for unfair dismissal applications changes every 1st of July each year. For this year, 2023-2024, the fee is $83.30. You can pay:
- Online. Pay the lodgment fee or request to have it waived when you submit your online application
- By email or post. The Commission will contact you about payment. The processing of your application will not commence until you pay the fee.
If you’d like to have your payment waived because you’re going through a serious financial hardship, you can apply for a waiver and use Form F80.
Post-application
When the Commission receives your application and payment:
- They will send a copy of your application to the employer
- Organise a conciliation meeting to help you and your employer discuss the issues.
In an unfair dismissal conciliation meeting in NSW, Australia, the Fair Work Commission (FWC) helps the employer and the employee discuss the issues in their unfair dismissal case. Conciliation is a voluntary and informal method of resolving an unfair dismissal application.
However, the vast majority of parties agree to participate in conciliation, as it offers the best opportunity to resolve the matter without the time and expense of a hearing.
After the private discussions, the conciliator connects everyone to the conciliation again. The parties will confirm:
- the details of the settlement, if the parties agreed
- the next steps if the parties did not reach an agreement, which is a formal conference or hearing.
Talk to an Employment Lawyer
Don’t let unfair dismissal leave you feeling powerless. Take back control and fight for your rights with the help of an experienced employment lawyer. If you’ve been unfairly dismissed from your job, you may have an entitlement for compensation or reinstatement. But navigating the legal system on your own can be daunting and overwhelming. That’s where an employment lawyer comes in.
JB Solicitors’ employment lawyers will be your advocate and guide throughout the entire process, from assessing your case to representing you in court. We will help you file your claims for unfair dismissal and ensure that we protect your rights, and that you receive the best possible outcome.
Don’t delay, contact an employment lawyer today to discuss your claims for unfair dismissal. You deserve justice if you have received an unlawful termination claim.
