Unfair Dismissal In New South Wales: Rules And Regulations

Covered Employees: National Workplace Relation System Vs. NSW Industrial Relations

By ABC

In New South Wales, the Fair Work Commission deals with cases related to unfair dismissal under Rule 45 and Section 39 of the Fair Work Act. Unfair dismissal under NSW laws, the termination of an employee is considered as ‘unfair’ if it was:

1. not a genuine redundancy;
2. unjust harsh or unreasonable, or
3. inconsistent with the Small Business Fair Dismissal Code (for employees engaged in small businesses);

The employees are governed by the national workplace relation systems that are administered by the Federal Government of the country. The Fair Work Commission determines all the claims related to unfair dismissal. The circumstances under which an employee is entitled to lodge claims related to unfair dismissal are as follows:

1. employer did not settle the entitlement due;
2. employer did not abide by the appropriate procedures while terminating the employee, or
3. the employer denied the rights of the employees;

The local government employees and the State public sector employees are represented by the NSW industrial relations systems and they are also entitled to lodge any claims pertaining to unfair dismissal provided they are covered by enterprise agreement or state industrial award or they either earn more than $138,900 or are award-free. If an employee believes that he has been unfairly dismissed from his or her employment, such employee is entitled to lodge dismissal claim before the NSW Industrial Relations Commission.

When an employee is terminated and is determined to lodge an unfair dismissal claim is permitted to do so within 21 days from the time such employee has been dismissed and have become entitled to lodge such claim.

If the claim is not lodged within the stipulated time, the Commissioner may be legally barred to deal with the claim unless exceptional circumstances are established before the Commission.

The deadline given of 21 day related to the date when the dismissal ‘becomes effective’ that is, the day when the employment is actually ceases:

• some employees are dismissed with a notice period to serve like 2 weeks, one month during which they have to continue working with the company. Their employment ceases after the completion of the notice period;
• some employees are terminated and are not served with any notice period which implies that their employment ceases on the day of termination;
• some employees are not required to serve their notice period instead they receive payment in lieu of such notice period. The dismissal of such employees becomes effective on the day they complete working at their workplace;

In other words, the dismissal of an employee takes effect on the day such employee ceases to attend their workplace irrespective of any notice period and the 21-day deadline commences from that very day.

For any further information relating the after lodgment process, the Fair Work Commission site contains detailed information regarding the types of forms to be completed. The claims against unfair dismissal can also be lodged online.

The ‘Form F2’ must be used while the lodging application is made through email, post or fax. If such application is submitted in person, the same should be submitted at the NSW Commission’s office.

The Online Lodgment Service uses SmartForm for lodging unfair dismissal claims and there is no need to attach the application form separately along with this online lodgment process.

After the claims for unfair dismissal is lodged, the employer is provided with a letter that mentions the stipulated time to respond. The Fair Work Commissioner shall invite both the employee and the employer to take part in a conciliation process over telephone and such process is conducted by the Commissioner. If such conciliation process, the matter may be dealt with in conference or at a hearing.

Lodging Claims for Unfair Dismissal: Requirements and Deadlines

The following individuals shall be barred from lodging unfair dismissal claims:

• employees who are involved in private sector and have been dismissed after 1 January, 2010;
• the independent contractors of a company;
• the trainees or employee of an organization;
• the employees who are casual employees;
• the employees who are on a probation period for three month provided they are determined in advance;
• employees who are engaged as an employment for any particular task under an employment contract;
• employees who are employed within an organization for any particular period that is less than six months as per the employment contract;

The trainees and Apprentices may contact the Apprenticeships & Traineeships Helpline on 122 588 for further information regarding the termination of their apprenticeship and training.

The employer may be ordered to:

• re-employ the dismissed employee in another position;
• reinstate the dismissed employee to their previous position;
• provide the employee with entitlements owed to him/her since the time of dismissal;
• provide compensation to the dismissed employee not more than the remuneration of the employee during the six months from the date of dismissal;

Several legislative provisions are enforced across the Australian states to make sure that the employers perform their legal obligations to ensure safety and health of employees so far it is reasonably practicable.

The NSW Industrial Relations (NSW IR) governs the obligations of the employers and employees with the objective to attain equitable, productive and fair productive workplaces. NSW IR monitors and advises on initiatives and development relating to workplace relations and supports the NSW government by taking part in the national workplace relations system.

From January 1, 2010, the private sector employers and employees are governed by the Federal Industrial Relations scheme- the Fair Work Act 2009 (Cth).

The following are the obligations performed by employers in New South Wales:

• The employers are required to endow the employees with appropriate assistance and support especially when employees suffer from medical condition or any non-work related illness or injuries;
• The employers are obligated to ensure that any worker who sustained injuries are able to resume their jobs as soon as possible. They are also entitled to ensure that employees suffering from any form of illness or injuries are not subjected to any harassment or workplace bullying.
• The employers mist ensure that the employees suffering from any illness or bodily injury are treated with care and are not subjected to any form of unfair treatment;
• The employers must ensure that the position of the employees suffering from any illness or injuries are kept open;
• The employers must consider requests of the employees to return early to work and provide them with all necessary assistance, to the extent it is reasonably practicable;
• Despite all the necessary assistance provided to the employees, if they fail to carry out their primary duties, it is not expected from the employers that they would keep the position of such employees open and continue with making adjustments resulting in hardships that is completely unjustified;

Definition 

An injured employee refers to an employee who is suffering from any form of permanent or temporary disability of physical nature.

A non-work illness or injury from which an employees is suffering may be defined as an injury or illness that did not result from the course of employment of such workers.

• The employers must pay appropriate wages to the employees;
• The employers must reimburse the employees for all the work-related expenses;
• The employers are prohibited from discriminating against the employees due to any injury sustained or illness suffered by such employees including a non-work injury or illness;
• The employers are entitled to take reasonable measures for eliminating sexual harassment, discrimination and victimization as far as possible under state and national employment opportunity and anti-discrimination laws in the workplace;
• In case of discrimination amongst the employees, the employers shall be held liable for such discrimination on the grounds of race, religion, caste, sex, nationality, origin, injury or illness;
• The employers must ensure that the employees are not subjected to unfair treatment;
• The employers must refrain from acting in a manner that might cause damage to the trust and confidence of the employee and affects the relationship existing between the employer and the employee;

In regards to the information related to eh obligation of the employer to forward PAYG tax installments to the Australian Taxation Office (ATO) and making of appropriate payment under the Superannuation Guarantee legislation, go through the Taxation and Your employees page for further detailed information.

An employer is obligated to ensure that workplace is healthy ad safe for the workers, contractors and volunteers to carry out their responsibilities. The Occupational Health and Safety Act NSW obligate the employers to ensure safety, welfare and health of the employees by:

1. ensuring safe use and handling of equipments;
2. maintaining safe and secure facilities within the workplace;
3. providing the employees or trainees with proper and necessary information;
4. endowing the employees with adequate skills and training and supervision techniques related to their respective roles;

Majority of the employers are required to maintain workers compensation insurance to compensate workers who suffer work related injuries or illness. Workers compensation insurance includes injuries that are suffered by independent contractors but volunteers. Therefore, volunteers must inquire if their organization has separate volunteer insurance policy.

 In case any employees sustain injuries at workplace may be entitled to weekly payments, lump sum payments if employee suffers from permanent disability. A workers compensation claim should be made within 6 months from the date of injury sustained. After the employer informs the insurer of the injury, the employees usually receive provisional liability payments within 7 days after the insurer investigates the facts related to injury.

If an employer is uninsured, an injured worker has a right to claim under the indemnity scheme and receive payment from WorkCover NSW.

The Fair Work Act 2009 (Cth) includes National Employment Standards (NES) that sets out ten entitlements with respect to minimum working conditions. Accordingly, the employers must perform the following obligations:

• the employers must provide maximum weekly hours of work that is reasonable overtime beyond 38 hours;
• the employers must consider requests for flexible working arrangements;
• parental leave and relevant entitlements should be considered;
• the employers must ensure that termination notice of 4 weeks at least is provided to the employees;
• the employers must ensure that the provisions of the Fair Work Information Statement are provided to all the new employees of an organization;

Any further information regarding these topics can be retrieved from government websites: Fair Work Australia, Fair Work Ombudsman, NSW Industrial Relations and WorkCover NSW.

The employees of an organization must ensure:

• they carry out their designated responsibilities within the organizations;
• they are required to exercise due diligence while carrying out their responsibilities;
• they are obligated to comply with the policies and procedures of the organizations such as Anti-discrimination policies, Prevention of bullying and harassment within the workplace on the grounds of race, color, sex, origin, nationality, injury or disability;
• the employees must ensure health and safe working environment within an organization;

In case there is an existence of code of practice or any employment regulations, the workers are obligated to ensure that:

• they follow the methods or procedures stipulated in the Code or Regulation;
• they undertake reasonable precautionary measures while abiding by such principles or methods;
• they exercise due care and diligence while carrying out their respective roles and responsibilities;
• the employees are not only responsible to ensure a healthy and safe working environment but are also responsible for ensuring their own safety and health and that of their colleagues;
• they must ensure compliance with any reasonable policies, procedures and instructions that are provided by the employers or controller of such workplace;

The compensation payments fall into two categories:

Medical expenses- the employees are entitled to medical expenses that are incurred due to injury caused in the course of employment;

Weekly Payments- the employees are entitled to compensation on a weekly basis for the income that they lost due to the injury sustained in the course of employment;

In NSW, the Workers Compensation Act 1987 [NSW], Workplace Injury Management and Workers Compensation Act 1998 [NSW], Workers Compensation Regulations 2003 [NSW] are the legislations that govern the Injury Management System and Workers Compensation in NSW.

PCBU stands for ‘a person conducting a business or undertaking’ refers to a statutory legal term under the Workplace Health and Safety laws for businesses, organizations or individuals that are involved in business undertakings.  Any person who works for such PCBU is referred to as a worker.

The workers are obligated to perform the following responsibilities:

• ensure safe use and handling of equipments, machineries;
• ensure that they have adequate information and training with respect to their respect field of expertise delegated to them within the workplace;
• ensure compliance with requirements stipulated under the Work Health and Safety Regulation;
• ensure that the working environment is safe and healthy;

The employees within an organization not only have responsibilities towards the organization but also towards their co-workers. The primary duties that the workers owe towards each other include:

• duty of care ensuring that their individual conduct do not cause damage to the other workers;
• influence or direct the workers to carry out their respective responsibilities within the organizations;
• encourage and provide assistance to each other while carrying out their organizational activities;
• ensure health as well as safety of another person is not likely at risk from the work carried on by one worker within the organization;
• the employees must ensure that they do not adopt discriminatory practices or prevent any discriminatory conduct against any workers, especially, those who are suffering from injuries or illness both work related or non-work related;

The provisions stipulated under the WHS Act 2011 and the Fair Work Act 2009 [Cth] should be abided by in order to ensure a healthy and safe workplace. Such provisions are essential for both the employers and the employees in order to achieve fair, reasonable and equitable working conditions within any organization.

Any further information regarding these topics can be retrieved from government websites: Fair Work Australia, Fair Work Ombudsman, NSW Industrial Relations and WorkCover NSW.