Understanding Your Rights as an Employee

In New South Wales (NSW), employees who believe they have been unfairly dismissed have the right to lodge a claim under Australia’s Fair Work Act 2009 (Cth) however, strict time limits apply.

Eligibility Requirements

Below are the key criteria that must be met to pursue an unfair dismissal claim:

• Employer Coverage: The claim must involve an employer who falls under the national workplace relations system. This generally includes companies registered under federal law.
• Minimum Employment Period: Employees must have been employed for at least 6 months in a business with 15 or more employees, or 12 months for a business with fewer than 15 employees.
• Employee Type: The employee must be covered by an award, enterprise agreement, or must earn below the high-income threshold. Some independent contractors may qualify if the nature of their work meant that they were treated more as an employee than a contractor.
• Dismissal: The employee must have been dismissed — redundancies and resignations do not qualify unless the redundancy was not genuine or the resignation was forced or coerced.

Grounds for Unfair Dismissal

An unfair dismissal claim may be lodged if the dismissal was harsh, unjust, or unreasonable.

The criteria to determine will generally include an assessment of:

• Whether there was a valid reason for the dismissal; and
• Whether the employee was afforded procedural fairness, such as being given a valid reason for the dismissal, an opportunity to respond or an opportunity to have a support person present.

Our lawyers may also be able to provide you with specialised advice if the dismissal was based on discriminatory grounds, such as race, gender, religion, or disability.

Time Frame for Filing a Claim

The claim must be lodged within 21 days after the dismissal takes effect. Extensions may be granted only in exceptional circumstances. That is why it is important to seek legal assistance as quickly as possible once you are dismissed from your job so that our lawyers can provide you with adequate and competent legal advice about your prospects of seeking an extension of time.

How to Lodge a Claim

Our office at Sky Solicitors Sydney can prepare the application for an unfair dismissal claim and file it with the Fair Work Commission. The process typically involves:

• Completing the application form available on the Fair Work Commission website (a lodgement fee applies); and
• Providing details of the dismissal, including the reasons and supporting evidence.

The matter is then listed before the Fair Work Commission. The Commission can deal with unfair dismissal disputes by conciliation, or by holding a formal hearing to decide if the dismissal was unfair. However, the parties are expected to participate in a Conciliation Conference which is designed to assist parties to try and settle their dispute. Our lawyers can attend and represent you on your behalf, making appropriate submissions to assist you to obtain the best possible outcome available in the matter.

Possible Outcomes

If the claim is successful, the Fair Work Commission may order:

• Reinstatement of the employment;
• Payment of compensation for lost wages;
• A declaration of unfair dismissal.

This list is non-exhaustive and other remedies may be available. Our lawyers will skilfully obtain your instructions as we try to ensure that your needs are met.

Legal Assistance

It is advisable to seek professional legal advice before lodging an unfair dismissal claim. Our team at Sky Solicitors Sydney has experience dealing with employment law and can help guide you through the process and understand your rights and obligations.

For further information, you may drop us an online enquiry.