Fair Work NSW: How to make an unfair dismissal claim

Fair Work NSW is an informal name for the New South Wales-based branch of Australia’s Fair Work Commission. This independent federal body exists to ensure the rights of workers are protected and, if violated, that employers are held accountable.

In this article, we provide all you need to know about the Fair Work Commission in NSW and how to make an unfair dismissal claim. We also provide examples of recent unfair dismissal cases involving workers from across the state.

Fair Work NSW: What does it do?

The Fair Work Commission in NSW is plays an important role in ensuring workplaces across the state are fair and equitable. It acts as a workplace tribunal that hears and adjudicates on cases of unfair dismissal. It also helps employees take action against their employer if they experience adverse action, bullying or sexual harassment.

Fair Work NSW also helps resolve disputes relating to awards or enterprise agreements. It ensures Australian employers provide employees with their minimum pay and work entitlements, known as the National Employment Standards (NES). And it plays a critical role in mediating industrial disputes and enterprise bargaining.  

The Fair Work Commission has two main offices in NSW, in Sydney and Newcastle. These offices are where NSW unfair dismissal hearings and conferences take place.

Making an unfair dismissal claim in NSW

Workers in New South Wales can contest their dismissal if they satisfy certain eligibility requirements. Time is of the essence when making a claim, as you only have 21 days from the date of your dismissal to do so. If your claim is submitted after this period, Fair Work NSW is very unlikely to grant a time extension.

Once you lodge your claim with the Fair Work Commission, it will be forwarded to your employer. They must then provide a response and depending on its nature, Fair Work NSW will schedule an informal conciliation. This aims to provide you and your employer the chance to discuss your dispute and come to a resolution.

If both parties cannot come to a resolution, your claim can proceed to a formal hearing. This is arbitrated by the Fair Work Commission, which will deliver a final ruling based on the evidence provided by both parties. If your dismissal is ruled as unfair, a remedy will be considered. Reinstatement to your former job is sought as a priority.

However, sometimes this is not considered a viable option if the employer-employee relationship has been damaged irreparably. The other type of remedy possible is financial compensation, which is paid by the employer to the employee.

For more information on how to lodge an unfair dismissal application in NSW, view our website here. You can also learn about the different types of unfair dismissal here.

What is the Industrial Relations Commission of New South Wales?

The Industrial Relations Commission of New South Wales has a similar role to the Fair Work Commission. However, it is dedicated to handling workplace issues concerning public service employees in state and local government organisations in NSW.

The Industrial Relations Commission of New South Wales plays a pivotal role in shaping the employment landscape of the state. It functions as a quasi-judicial body, tasked with conciliating and arbitrating industrial disputes. It also determines conditions of employment, sets wages and salaries through industrial awards and approves enterprise agreements.

Another critical role of the commission is to conciliate and adjudicate claims of unfair dismissal. That is, for NSW workers who do not fall under the federal Fair Work system and the Fair Work Act 2009. Here, we provide examples of unfair dismissal claims lodged by workers from across NSW. These claims proceeded to Fair Work NSW for a formal hearing. Read on to learn how the commission came to its final decision.

Newcastle woman sacked by new age church for being vaxxed

The Fair Work NSW case Church Of Ubuntu v Lainie Chait [2023]  involved a woman who was dismissed for taking the COVID-19 vaccine. The Newcastle-based Church of Ubuntu claims to offer an “all embracing multi-faith philosophy and way of life.” Drawing heavily from Christian scripture, the church aims to “peacefully contest the manipulation of creation for greed or selfish intent.”

It runs a wellness centre that professes to help clients “achieve long-term health and vitality.” That is, through treatments that include “cell food concentrates, herbal blends, nutritional supplementation, dietary and lifestyle suggestions.

Worker is fired for getting vaxxed

Ms Chait’s role at the church involved running wellness consultations and organising cannabis orders from clients. In October 2021, the president of the church uploaded a voice message on the church’s Facebook group chat. In the message, he said that he had found out that Ms Chait had taken the COVID-19 vaccine and that any staff members who did could not represent the church.

On 11 October 2021, Ms Chait was sacked by the church. In her dismissal letter, the church said that taking the vaccine was “contrary … to what is required of us by our Lord God and Creator.” It therefore decided that Ms Chait “can no longer be a full member” of the church. However, that she could “in keeping with the Ubuntu philosophy still remain as an associate member if she chooses.”

Fair Work NSW rules on the case

The church argued to the Fair Work Commission in NSW that Ms Chait was not in fact an employee, but an independent contractor. It therefore argued that she was not entitled to make an unfair dismissal claim, as she did not qualify as an employee.

However, this argument was found to be false. It was noted that Ms Chait was paid a salary by the church and was not allowed to work for other entities. Also, that she was required to comply with the church’s belief systems. The unfair dismissal application was therefore allowed to proceed, but the church later appealed the decision. In 2023, Fair Work NSW rejected this appeal.

Lawyer who spent 7 hours a day surfing the net wins $3K

The Fair Work NSW case William Ellis v Chrysiliou IP Pty Limited [2023] involved a Sydney lawyer who was sacked for surfing the web. Mr Ellis had been found by his employer to have been browsing various sites for over 7 hours a day. This included sites relating to books, music, bands, films, comics PlayStation games and eBay listings. Mr Ellis, however, had told his employer that he had been too busy to respond to an important client. This prompted Chrysiliou IP to view his web browsing history.

Prior to this discovery, Chrysiliou IP had banned Mr Ellis from working from home after he was found to have been doing so without permission. The law firm had also issued him with a final warning for not following up with a client. Mr Ellis was summarily dismissed following the discovery of his time-wasting web browsing.

Fair Work NSW delivers ruling

The Fair Work Commission in NSW found that the employer had a valid reason for sacking Mr Ellis. This was based on his poor performance and inability to respond to the client. However, it did not agree that his browsing history was sufficient reason to summarily dismiss him. That is, without giving Mr Ellis the chance to respond to the allegation.

“If the [firm] had sought to dismiss [Mr Ellis] on conduct-related grounds relating to his browsing history and alleged dishonesty, it should have put that concern to him and given him an opportunity to respond before it dismissed him summarily,” Fair Work NSW stated.  Having fired Mr Ellis unfairly, Chrysiliou IP was ordered to pay him $3,110 in compensation.

Sydney worker wins over $2K for unfair dismissal

The Fair Work NSW case Tomaso Edwards Moro v Insider Au Pty Ltd [2023] involved a Sydney-based worker who claimed he was dismissed for stating his intention to resign and go travelling. Mr Moro worked for Insider Au as a digital growth associate. On 9 August 2023, he had a phone call with a representative of Insider Au, telling him that he was planning to travel and would resign with four weeks’ notice. The company then decided to extend Mr Moro’s notice period to eight weeks.

On 10 August 2023, Mr Moro told the representative that he did not want to resign anymore as his travel plans were up in the air. However, on 31 August the representative called Mr Moro and told him words to the effect that “it is best to part ways.” He asked Mr Moro to pen a resignation letter stating that his final day was 1 September. Mr Moro refused to resign. On 1 September, he lost access to Insider Au’s IT systems and was notified that he will receive two weeks’ pay in lieu of notice.

Fair Work NSW rules on the unfair dismissal case

Mr Moro argued to the Fair Work Commission that he had been a high-achieving worker who had received several awards. He claimed that he had received no warnings regarding poor conduct or performance in the lead up to his dismissal. His argument to Fair Work NSW rested on the belief that he was not provided with procedural fairness and therefore his sacking had been unfair. He also contended that Insider Au had failed to pay him his full entitlements in lieu of notice.

The Fair Work Commission in NSW found that Mr Moro “was not given an opportunity to respond to any reason related to his capacity or conduct.” It stated that the sacking had been “pre-determined.” Insider Au was therefore ordered to pay Mr Moro $2,208 in compensation.  

Dubbo teacher accused of mistreating child wins $11K

The Fair Work NSW case Emma Horan v Tren Trading Pty Ltd t/a Dubbo Early Learning Centre [2019]  involved a Dubbo-based early childhood teacher who was falsely accused. Ms Horan had been accused of forcibly moving a child who was engaging in rough play to an exclusion spot. When the child began crying, she then allegedly yelled at the child and placed them in another room. Ms Horan was stood down while the employer conducted an investigation into the incident, which it said amounted to serious misconduct.

The employer interviewed several witnesses to the incident who all told a different story. Plus, not one of the witnesses said that Mr Horan had yelled at the child or placed them in an exclusion spot. Even so, the employer fired Ms Horan.

NSW Fair Work Commission provides ruling

In her unfair dismissal application, Ms Horan gave a different description of the incident. Ms Horan said that she was forced to separate the child from another child as they had been sitting on the other child’s head. When she removed the child by holding their hand, they began hitting her. After moving the child to the exclusion spot, Ms Horan asked them if they were ready to return to the main room. The child said yes and hugged her.

Fair Work NSW stated that in dismissing Ms Horan, the employer was required to prove that serious misconduct had occurred. It found that the employer’s decision was “unsound, indefensible and ill founded” and “based entirely on a hopelessly flawed investigation.” The commission found that Ms Horan had not yelled at or excluded the child from their peers. It ruled that she “was denied procedural fairness on a wide scale.” It therefore ordered the employer to pay Ms Horan $11,860 in compensation.

Conclusion to: Fair Work NSW

We at A Whole New Approach have been helping workers in NSW take action via the Fair Work Commission for over 20 years. AWNA do not only operate in New South Wales, but every Australian state and territory.

We have helped over 16,000 Australian workers seek redress through the Fair Work Commission. If you have experienced unfair dismissal, bullying, harassment or any other violation of your workplace rights, contact us today.

Call 1800 333 666 to organise a free and private consultation.

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