Unfair Dismissals NSW

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What is Unfair Dismissal in NSW?

An unfair dismissal occurs if an employee has been made redundant due to unfair circumstances. These unfair circumstances vary depending on the job, the situation and why the dismissal occurred. Often an employee is dismissed unfairly and due to not being aware of legalities in the workplace they miss a severance package or chance to appeal. 

If you are unsure on what to do a simple call to us will clarify everything and at the same time take a lot of stress off your shoulders. Give us a call 7 days a week on 1800 333 666.

What To Do

If you feel you have been unfairly dismissed by your employer contact us. A simple call with one of our staff can ease a lot of the stress you are going through and it only takes a couple of minutes. We have staff available 7 days a week. 1800 333 666

Is it Unfair Dismissal in NSW?

In some circumstances, a demotion may be an unfair dismissal. If an employee has been demoted or terminated from employment they may be eligible to apply for unfair dismissal in New South Wales.

If an employee has been demoted or terminated due to a workplace right, exercising a workplace right or propose to exercise a workplace right, they may be eligible to make a general protections claim in NSW.

If an employee is demoted or fired because of discrimination due to a protected attribute (eg race, disability, sex, sexuality), they may be able to make a discrimination claim in NSW.

Could my serious misconduct not result in dismissal in New South Wales NSW?

Serious misconduct. These two words are most often than not proceeded by with dismissal. The Fair Work Commission in New South Wales (NSW) heard the case of MacDonald v Whitehaven Coal Mining Ltd [2021] FWC 838.  

What happened?  

In 2011, the Applicant was employed to work at Tarrawonga Open Cut Coal mine. The Applicant was terminated by the employer for serious misconduct due to failure to follow procedures, specifically obligations for health and safety. The Applicant argued that there was no valid reason for dismissal because despite appearing to have breached the rules of the Company, he contended that the situation did not permit him to comply with them.

The Commission in NSW found that the Applicant was denied his right to basic procedural fairness in the termination process. This is because although the Applicant admitted to breaching the specific procedure (‘rule 5’) of the Company, the Company did not give the applicant an opportunity to respond to the show cause letter. And it was this lack of procedural fairness in the termination process that made the dismissal unjust, and hence constituted an unfair dismissal. Procedural fairness refers to the decision-making process regarding a potential dismissal. Procedural fairness includes: whether an employer has followed their own policy and procedures when dismissing an employee, whether the employee was given the opportunity to explain his or her side of the incident and whether the employee is able to seek advice and have a support person present at the meeting. In order for a dismissal to be fair, procedural fairness, also known as natural justice must be adhered to by the employer. 

Section 387(c) of the Fair Work Act 2009 (Cth) states that an employee must be notified of the reason for termination and must also be given an opportunity to respond to that particular reason before the decision to terminate is made. Therefore, if you are called into a meeting and are given a list of allegations amounting to serious misconduct, and your employer terminates you on the spot without allowing you to answer the allegations, this constitutes unfair dismissal. 

unfair dismissal nsw

Factors to be taken into account by the Fair Work Commission

A. Differential Treatment

This case also touched on differential treatment which showed that the dismissal of the Applicant was unreasonable. The Commission in this case was satisfied that there were comparable circumstances with other employees also breaching the same rule, who were not dismissed.  As per Sexton v Pacific National (ACT) Pty Ltd PR931440, the examples of differential treatment must be properly comparable, providing the example of comparing ‘apples with apples’.

B. Personal Circumstances of the Applicant

This case also touched on differential treatment which showed that the dismissal of the Applicant was unreasonable. The Commission in this case was satisfied that there were comparable circumstances with other employees also breaching the same rule, who were not dismissed.  As per Sexton v Pacific National (ACT) Pty Ltd PR931440, the examples of differential treatment must be properly comparable, providing the example of comparing ‘apples with apples’.

C. Loss of Trust and confidence

This case also touched on differential treatment which showed that the dismissal of the Applicant was unreasonable. The Commission in this case was satisfied that there were comparable circumstances with other employees also breaching the same rule, who were not dismissed.  As per Sexton v Pacific National (ACT) Pty Ltd PR931440, the examples of differential treatment must be properly comparable, providing the example of comparing ‘apples with apples’.

Outcome

The Applicant was reinstated and was paid for the 25 weeks that the Applicant was out of work for due to the Fair Work Commission taking into account all the circumstances of the case as per B, C and D v Australian Postal corporation T/A Australia Post [2013] FWCFB 6191.  By looking at the situation holistically, rather than just at the incident of serious misconduct, Fair Work NSW that the termination was harsh, unjust and unreasonable and therefore, was in fact a case of unfair dismissal.

Current Issues

On 13 May 2021, the Sydney Morning Herald reported that in NSW a second MP has been forced out of the government over allegations of sexual violence (https://www.smh.com.au/national/nsw/nsw-police-investigate-sexual-violence-allegations-against-nsw-mp-20210513-p57rpw.html). However, Minister Garath Ward, the minister for Families, Communities and Disability Services in NSW denies any wrongdoing or even knowing of an investigation into the conduct until a journalist asked him about it. Serious misconduct occurs in every workplace, and often results in termination (in a Politician’s case resignation from the front bench).

Serious misconduct should not be taken lightly as most often than not it will result in a dismissal. However, there are various factors such as the ones mentioned above that were taken into account by Fair Work in the case of MacDonald v Whitehaven Coal Mining Ltd. Therefore, if you’re in NSW and believe that your dismissal has been the unjust, harsh or unreasonable due to the reasons mentioned above give us a ring on 1800 333 666 to discuss whether you have a claim of unfair dismissal.

Industrial Relations Commission of New South Wales (IRC)

In New South Wales, employees of the State public sector or local government are not protected under the national Fair Work system, unless their employer has a registered agreement in the national system. Employees not covered by the national system can pursue their industrial relations matter under their state system, which is the Industrial Relations Commission of New South Wales (IRC).

Fair Work Commission Sydney

A dismissed employee in New South Wales that does not work for a State government entity can pursue an unfair dismissal claim in the Fair Work Commission.

A dismissed employee in New South Wales that works for a State government entity can pursue an unlawful dismissal claim in the Fair Work Commission.

A dismissed employee in New South Wales that works for a local government entity can pursue an unlawful dismissal claim in the Fair Work Commission.

Latest News in NSW

Employee Threatens to Stab Supervisor – Wins Unfair Dismissal Case in NSW

n Michelle Rawson v Mudgee Golf Club Ltd,[1] the employer summarily dismissed an employee, Ms Michelle Rawson, for serious misconduct after she threatened to stab her supervisor, behaved disrespectfully towards fellow employees and attempted to delete the employer’s Facebook page. The Fair Work Commission in Sydney determined that there was a valid reason to dismiss the employee for serious misconduct but due to the flawed workplace investigation, the dismissal was held to be unfair.

Get in Touch

Get in touch with the staff at Unfair Dismissals for a free consultation. We will listen and provide the correct advise on how to proceed.

 

Be advised, the sooner you contact us the sooner we can help.





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