Unfair Dismissal (NSW Government Employees):

The NSW Industrial Relations Commission (“IRC”) has jurisdiction to hear unfair dismissal applications filed by state public sector employees and local government employees. There are several prerequisites that must be met in order to be eligible to make an application to the IRC, some of which include:

• The employee must be a public sector employee;
• The employee must be covered by an award or Enterprise Agreement;
• The employee cannot earn more than the unfair dismissal threshold;
• The employee is not an apprentice or trainee;
• The employee must not be presently serving a probationary period or qualifying period;
• The employee cannot be a casual employee;
• The employee must not be employed for the performance of a specific task or only for a specified time being a period of under 6 months;
• The conditions of employment cannot be governed by special arrangements providing protection regarding termination.

An application for unfair dismissal must be made within the time prescribed by IRC Act, any late applications will need the leave of the IRC in order to be accepted. Once an application is received, a conciliation date will be set, and the employer will be provided time to file their reply to the application. At conciliation the parties will attempt to reach a resolution to their dispute. If a settlement is not reached then the matter will proceed to arbitration. At arbitration the parties will be provided an opportunity to present evidence in support of their case. The applicant will need to demonstrate that the dismissal is harsh, unreasonable or unjust in order to succeed in their application for unfair dismissal.

When determining a claim, the IRC will, if appropriate consider whether a reason for the dismissal was given, the nature of the reason and whether the applicant had an opportunity to respond to the reason, whether any warnings of potential termination was given, the nature of the duties of the applicant before the dismissal, whether or not reinstatement has been requested and any other matters the IRC considers appropriate in the circumstances of the case.

If the IRC finds in favor of the applicant and concludes that unfair dismissal has occurred, they have the authority under the IRC Act to order that the employee be reinstated into their previous or an alternative role, that the employee receive back pay or compensation (which is capped).

If you are a public sector employee and have received notice of imminent termination, or have been dismissed, we recommend that you obtain legal advice as soon as possible to prevent any delays in filing an application for unfair dismissal. If you wish to speak with one of our Government Employees Law & Representation Lawyers, please contact our firm by telephone on (02) 9233 4048 or send an email to info@navado.com.au. 

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