INSTRUCTION SHEET

The key steps in pursuing a claim for unfair dismissal are as follows:

1. Determine whether you have been “dismissed”.

2. Determine whether a particular dismissal is “unfair” or “unlawful”.

3. Determine which is the appropriate tribunal or court that you should try to access to obtain redress if you believe your dismissal was unfair.

4. What is it that the tribunal or court can do if it concludes your dismissal was unfair, and what orders can it make in your favour.

DO I HAVE A CLAIM?

There are certain preliminary matters that have to be clarified first before a person can reach the conclusion that they might have a claim for unfair dismissal.

In many cases, these preliminary matters are not difficult to satisfy but nevertheless they do need to be considered and where there is doubt about any one of them, professional advice will be required:

1. Was the relationship between yourself and the person or entity that you believe dismissed you that of employee and employer?

Generally speaking, an unfair dismissal claim is only available to a person who was an “employee” according to the legal definition of that term. Of course, most people who perform paid work for another person or entity are employees but sometimes there is doubt.

For example, there are various categories of “contractors” who perform work for another and look like employees but according to the law are not. Often of course the employer has acknowledged the person working for him as an employee by such steps as confirming the situation in writing.

In general terms an employee is a person who provides personal service to another for reward in circumstances where the other person exercises control over the person who performs the work (or at least has the right to control that person). The courts look to a number of factors to determine whether a person is an employee – such as full-time work, provision of a regular weekly pay, personal service that cannot be delegated to another person, issuing of group certificates, provision of leave entitlement and so-forth.

2. The next question is whether an employee has been “dismissed”. Generally speaking, a dismissal from employment is a situation where the employee’s services are terminated by the employer without the employee’s consent.

In the overwhelming majority of cases, there is no uncertainty about whether an employee has been dismissed. The employer initiates the termination of services in some overt way, either in writing or by conduct or words. However, in certain circumstances an employee can be said to have been “dismissed” by the employer even if the employer has not taken an overt step to terminate the employment. This is referred to generally as “constructive dismissal”. Examples of “constructive dismissal” are:

• the employer gives the employee an ultimatum to resign or be dismissed, and then the employee resigns; or
• the employer breaches the contract of employment in a very serious respect, such that the law would regard the employer as having “repudiated” the contract of employment, leaving the employee in a position where he or she may elect to treat himself or herself as having been dismissed; or
• unilaterally demoting and/or reducing the pay of an employee.

3. Was the dismissal “unfair” or “unlawful”? Whether a particular dismissal is “unfair” is generally speaking a matter that has to be determined on the facts and circumstances of each case.

Generally speaking, in this context, tribunals and courts need to look at the reason given for a dismissal (if any); whether the reason was based in fact or whether the employee was given a warning to improve his or her performance prior to being dismissed for poor performance; whether the employee was given the opportunity to defend himself or herself prior to being dismissed for misconduct; whether the misconduct by the employee was so serious as to justify dismissal or whether some lesser penalty should have been imposed. And the list could of course go on.

Furthermore, the law make certain reasons for dismissing an employee “unlawful”. The reasons that are “unlawful” depend upon the relevant statute laws that applies to the employee’s employment - for example, under federal legislation, the following reasons are not valid reasons for dismissing an employee and therefore dismissal for any one of these reasons is “unlawful”:

(a) race;

(b) sex, including pregnancy and marital status;

(c) physical and mental disability;

(d) sexual preference;

(e) temporary absence due to illness;

(f) membership or non-membership of a trade union;

(g) family responsibilities;

(h) religion, political opinion, national extraction or social origin;

(i) absence from work during maternity leave or parental leave.

NSW INDUSTRIAL RELATIONS COMMISSION CLAIMS

In the State of New South Wales, the remedy most often selected by ex-employees seeking redress in relation to what they allege to be unfair dismissal is an Application for Relief under Chapter 2 of Part 6 of the Industrial Relations Act, 1996 (NSW).

This application is in effect an application by a former employee to the New South Wales Industrial Relations Commission seeking a finding that the dismissal was either harsh, unreasonable or unjust and consequently seeking an order against the former employer for either reinstatement, re-employment or monetary compensation. The most relevant provisions of the mentioned Act are Sections 83 to 90.

The right to bring a claim under these sections is conferred only on certain limited categories of employees. The relevant provisions are Section 83 and Regulation 5B.

In summary, those persons who are entitled to bring a claim for relief under this Act are as follows:

• any public sector employee; and
• subject to a number of exceptions, any other employee.

It is important that a person wishing to bring a claim under this Act finds out whether he or she falls within one of the exceptions before bringing a claim. There are a large number of exceptions and it is not possible to list them all here, but the most important ones are as follows:

• any employee whose employment is regulated by a federal industrial instrument or otherwise regulated by federal law (eg. a person whose employment is regulated by a federal award or who is, for example, a federal public servant);
• a person for whom conditions of employment are not set by a state award or other state industrial instrument and whose annual remuneration is greater than a prescribed amount (the prescribed amount at the current time is $69,200.00);
• employees engaged under a contract of employment for a specified period of time, if the specified period is less than 6 months;
• employees engaged under a contract of employment for a specific task;
• employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and is either 3 months or less or, where the period is more than 3 months, the period is reasonable having regard to the nature and circumstances of the employment;
• employees who are engaged in a casual basis for a short period except where (describing the situation generally) the employee has had regular and systematic work for a period of at least 6 months and would but for the have had a reasonable expectation of continuing employment with that employer.

If a particular person is entitled to bring a claim under the State Act, then application has to be made to the New South Wales Industrial Relations Commission, which has power to hear the case. If a settlement cannot be achieved prior to a hearing, the Commission then conducts a hearing and, if it finds that the dismissal was harsh, unjust or unreasonable, it can make orders such as reinstatement or re-employment in another position (with or without back pay). In the alternative, if the Commission does not believe that reinstatement or re-employment is practicable, it can award monetary compensation not exceeding the amount of remuneration of the former employee during the period of 6 months immediately before that employee was dismissed.

Here are some important points to note about these claims:

• An application should be filed within 21 days of the date of the dismissal – extensions of time can be granted but only for good reason.
• The Form of Application is available to be completed at the Commission’s Registry at 50 Phillip Street Sydney and there is a $50.00 filing fees (which can be waived by the Registrar in demonstrated cases of hardship).
• Once filed a sealed copy of the Application must be served on the employer as soon as possible.
• In the first instance the Application comes before a member of the Commission who has the duty to try to get the parties to reach a settlement.

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CLAIMS

There are some limited categories of employees in the State of New South Wales who are eligible to bring a claim for relief in relation to dismissal before the Australian Industrial Relations Commission where it is alleged that the dismissal was “harsh, unjust or unreasonable”. The following are the types of employees in New South Wales who can bring such claims:

1. a Commonwealth public sector employee (eg. a Commonwealth public servant);
2. an employee, any of whose terms and conditions of employment are governed by a federal award or a federal certified agreement or an Australian workplace agreement, where that employee was employed by a “constitutional corporation”;
3. a federal award employee who was a waterside worker, maritime employee or flight crew officer employed in interstate or international trade and commerce.

The secondmentioned category above is the most prevalent category in the State of New South Wales. A “constitutional corporation” is in effect a trading or financial corporation.

The requirements and procedures relating to accessing relief before the Australian Industrial Relations Commission under the Workplace Relations Act, 1996 (Cth) are complex and cannot be fully and properly explained in a few short sentences.

If a person does have the right to bring a claim before the Australian Industrial Relations Commission for unfair dismissal, the Commission tries to encourage the parties to reach a settlement but, if that is not possible, the Commission (if the ex-employee elects to proceed after a conciliation conference) hears the case and has the power to make certain orders, including reinstatement, re-employment or monetary compensation.

The maximum amount of compensation that can be awarded for those who are covered by an award is their total remuneration received for the previous 6 months, and for non-award employees, it is their total remuneration for the previous 6 months or the amount of $32,000.00 as indexed from time to time in accordance with the Regulations, whichever is the lower amount.

If an employee believes that he or she has been dismissed for an “unlawful” reason (see Document 3) he or she can elect to bring his or her claim before the Federal Court of Australia. Professional advice MUST be sought before such a step is taken.

OTHER TYPES OF CLAIMS

Claim for Damages for Wrongful Dismissal – This is a claim that a dismissed employee may be able to bring in a civil court (eg. the District Court of NSW) alleging that he or she has been dismissed in breach of his or her contract of employment with the employer and seeking an award of damages against the employer for losses sustained as a result of that breach. Usually these types of claims are not worthwhile for employees below the executive or managerial levels.

Unfair Contract Claims – In certain circumstances an aggrieved employee might be able to bring a claim in the New South Wales Industrial Relations Commission in Court Session alleging that he or she was party to an unfair contract or arrangement, and claims of this character can, in certain circumstances, be brought in the context of a dismissal of an employee (usually a professional or managerial employee). These types of claims involve superior court litigation and often involve complex legal issues. The effective initiation or defence of these types of action is very difficult (perhaps impossible) without expert legal advice.

Claim for Relief in Relation to “Unlawful Termination” – Such a claim is one brought in the Federal Court of Australia alleging that that employee was dismissed for a prohibited reason (eg. temporary absence due to illness, membership or non-membership of a trade union, or because of his or her race, sex, religion, political opinion, etc.). Such a claim is available as an alternative to a claim for “unfair dismissal” before the Australian Industrial Relations Commission but a much wider category of employee can bring this type of claim compared to categories who might bring a claim before the Australian Industrial Relations Commission. Because of itsnature and the fact that they involve superior court litigation, the effective initiation or defence of this type of action is extremely difficult (perhaps impossible) without expert legal advice.

Claim for “Victimisation” – Under various statutes, an employee may be provided with the opportunity to bring a claim against his or her employer for reinstatement or monetary compensation where the employee believes that his or her dismissal was due to “victimisation” – particularly if the dismissal was in contravention of “freedom of association” principles. Once again, this type of remedy is one that cannot effectively be initiated or defended without expert legal advice.

Discrimination in Employment – A number of different statutes confer on employees the right to make a complaint or bring a claim against their employers alleging dismissal by reason of a ground prohibited by “anti-discrimination” or “equal opportunity” laws. There are a number of different statutes that relate to the question of discrimination in employment (and discrimination generally) including the Anti-Discrimination Act, 1977 (NSW), the Racial Discrimination Act, 1975 (Cth), the Sex Discrimination Act, 1984 (Cth) and the Disability Discrimination Act, 1992 (Cth). The most commonly referred to grounds for claims of this type are race, sex (including pregnancy and marital status), physical and mental disability and homosexuality. These claims can be brought before either the Anti-Discrimination Board of NSW or the Human Rights & Equal Opportunity Commission (depending upon which Act is relied upon).

NSW State Government Employees – Employees in NSW who are employed by the NSW Government, or any of the various statutory authorities owned or controlled by that government, have an alternative right to bring a claim for relief in relation to dismissal in a tribunal entitled “The Government & Related Employees Appeal Tribunal” (known as “GREAT”). Such employees can however in the alternative bring a claim in the NSW Industrial Relations Commission if they allege unfair dismissal.

Claim by “Protected Employee” – Sections 91 to 100 inclusive of the Industrial Relations Act, 1996 (NSW) make provisions seeking to protect employees with work-related injuries from dismissal by reason of those injuries. These provisions provide for the possibility of an employee bringing a claim for reinstatement where he or she alleges that he or she has been dismissed by reason of his or her workers’ compensation injury. This is a very specific remedy and cannot be considered in any particular case without specialist advice.

IF I HAVE A CLAIM, WHAT DO I DO?

If a person does believe they have an unfair dismissal claim, then it is essential that he or she not delay in investigating the matter.

In investigating the mater, it is vital that the person concerned seeks out information or advice as soon as possible because the unfair dismissal remedies place reasonably strict time limits on bringing claims.

The most common form of claim concerning unfair dismissal in New South Wales is a claim under Section 84 of the Industrial Relations Act, 1996 (NSW).

Any such claim must be filed within 21 days of the date of the employee’s dismissal. Provision exits for the Commission to grant an extension of time for the bringing of a claim after the expiry of the 21 days but if an employee does wish to bring a claim which is outside of the time limit, he or she will have to explain to the Commission the reason for the delay and the prejudice that he or she will suffer if he or she is not allowed to proceed with a case (as well as being required to provide other information).

Basically the same rule applies to claims for unfair dismissal brought before the Australian Industrial Relations Commission.

A person wishing to bring a claim himself or herself in either of the Tribunals referred to above, should make contact with the appropriate registry to obtain the forms and information. The address of NSW Industrial Registry, for claims under Section 84 of the Industrial Relations Act, 1996 (NSW) is 50 Phillip Street, Sydney.

For those wishing to lodge claims for unfair dismissal in the Australian Industrial Relations Commission, its registry is located at 80 William Street, East Sydney.

So far as other types of claims are concerned, they each of their own particular time limits and requirements. If a person is wishing to explore the possibility of bringing any one of these alternative claims then he or she should seek professional advice.

FURTHER INFORMATION

This Information Outline is provided courtesy of Carroll O’Dea Solicitors who are experienced in this area of law. They are located at 19th Level St James Centre 111 Elizabeth Street SYDNEY NSW 2000 or call them on (02) 9232 2133 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

Carroll & O'Dea has been in legal practice for over 100 years. It holds Best Practice accreditation from the Law Society of New South Wales. Carroll & O'Dea takes pride in providing clients with a rare combination of traditional, personal service and contemporary thinking. The firm is well equipped to meet the requirements of all clients whatever their interests. The firm has been blessed to receive instructions from the entire spectrum of the Australian community; from private individuals through to large organisations, from religious Congregations through to Government entities.