Have you wondered where one can make unfair dismissal claims for public sector employment? Contrary to popular belief, public sector employees cannot make unfair dismissal claims via the Fair Work Commission. In other words, public sector employees such as NSW Government employees and local government employees are not protected by the Fair Work Act (2009). Instead, public sector employees must make any unfair dismissal claims to the Industrial Relations Commission (IRC).
This article outlines key points in relation to unfair dismissal claims for public sector employees.
What Does Unfair Dismissal Mean?
Unfair dismissal, as the name suggests, includes the termination of employment in a way that is harsh, or more importantly, unreasonable. Moreover, where the reason for termination seems unjust, it can be considered an unfair dismissal. According to Section 385 of the Fair Work Act (2009), it can be said that the employee has been unfairly dismissed if the FWC is satisfied that:
- The person has been dismissed; and
- The dismissal was harsh, unjust or unreasonable; and
- The dismissal was not consistent with the Small Business Fair Dismissal Code*; and
- The dismissal was not a case of genuine redundancy.
*The Small Business Fair Dismissal Code include important guidelines under the Fair Work Act 2009 that outline the process for dismissing an employee in a small business. In Australia, a small business is one that has 15 or fewer employees.
For example, consider the following scenarios where an employer fired their employee:
- Suppose Riordan made a complaint to his boss about certain workplace safety issues. If Riordan was fired because of raising this complaint, he can make an unfair dismissal claim.
- Consider Layla, an immigrant worker from Colombia who was fired due to her race. This is discriminatory and an example of unlawful termination. Layla can make an unfair dismissal claim.
In both these examples, the employees can make an unfair dismissal claim against their employer. If you are facing issues related to employment law, feel free to reach out to our Sydney employment lawyers today.
How to Make an Unfair Dismissal Claim with the Industrial Relations Commission?
Just like the Fair Work Act (2009), the Industrial Relations Act (1996) in NSW is an important piece of legislation when dealing with unfair dismissal in the public sector.
As mentioned, employees who want to make an unfair dismissal claim in public sector must do so with the Industrial Relations Commission, and not the Fair Work Commission. This is applicable if the employee is a state public sector employee, or a local government employee.
Firstly, we recommend that you gain some preliminary advice from employment lawyers who have experience dealing with Industrial Relations Commission.
In any case, note that, if you wish to make such a claim, you must make it within 21 days of the dismissal taking effect. If you file the application late, you must provide valid reasons behind the delay if you wish for your claim to be assessed.
Most importantly, take note of Form 7A. Applicants have to file this application form, and either lodge this application in person, via mail, or online. To lodge it in person, file the application at any NSW Local Court.
What is the Unfair Dismissal Industrial Relations Commission Process After You File the Claim?
Typically, applicants receive a notification containing details for conciliation. Specifically, applicants should receive the time, location and date for conciliation. Conciliation is essentially the first step for resolving a claim related to unfair dismissal in public sector. The possible outcomes following a conciliation may include payment of wages, entitlements or compensation, or reinstatement, or a statement of service etc. Note that a part of the process also involves the employer submitting a reply to the claim and providing details about their position with regard to the dismissal claim. If the conciliation fails, the matter will proceed to a full hearing. Please contact our Sydney employment lawyers for specific legal advice related to your matter.
Frequently Asked Questions: Unfair Dismissal in Public Sector
Who is Not Eligible to File an Unfair Dismissal Claim in Public Sector?
The following persons are not eligible to file for an unfair dismissal claim with the Industrial Relations Commission:
- Apprentices or trainees
- Employees of private sector employers if dismissed after January 1, 2010
- 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.
Can you lodge an appeal if you have been unsuccessful after an unfair dismissal hearing?
It is possible for the unsuccessful party to file an appeal to the Full Bench of the Commission.
There are relevant Appeals forms including Form 28, Form 29 and Form 30. For more information on the appeals process, reach out to our employment lawyers.
What does the Industrial Relations Commission take into account when assessing an unfair dismissal claim in the public sector?
The IRC will consider the following factors, among others:
- Did the employer provide the reason for dismissal?
- Did the reason have a basis in fact?
- Did the employee get an opportunity to provide an explanation?
- Did the employer give a warning before the dismissal?
What happens if either party does not comply with terms of settlement?
This is a serious problem, and in such instances, the Industrial Relations Commission can make enforceable consent orders in the Local Court.
Obtaining Legal Advice from Industrial Relations Commission Lawyers
If you feel that you have been unfairly dismissed, or if you are a public sector employee facing a claim from a former employee, it is necessary to get employment law advice from leading IRC lawyers and unfair dismissal lawyers.
Our team of experts can guide you throughout the application or appeal processes and can represent your matter. We always have our clients’ best interests at heart, and strive to reach the best possible outcome.
For more information, contact us here.
