State system employees

What should I do first if I have an employment problem?

If you have an employment problem, you should check:

• ​any award or agreement that applies
• your employment contract
• ​any employment policies at your work.

​You can also contact your union for assistance, if you are a member.

What options do I have if I am dismissed?

If you are dismissed, you may:

• ​apply for unfair dismissal with the Industrial Relations Commission.
  
• apply for unlawful termination with the Fair Work Commission if you are a national system employee but are not entitled to make a general protections dismissal application because the reason for your dismissal is not prohibited by the general protections provisions under the Fair Work Act.
  
• ​​have other options depending on your circumstances, for example, taking legal action for breach of contract if your employer didn't follow the terms of the employment contract.
  

 If you are not sure what to do, you should get legal advice.

Can I apply for unfair dismissal?

You may be eligible to apply for unfair dismissal with the Industrial Relations Commission if you are:

• a state public sector employee or a local government employee
  
• covered by a state industrial award or enterprise agreement, or
• earn no more than $175,000 (as at 1 July 2024).
  

This may include some casual employees. It usually applies to casuals who have worked on regular and systematic basis for at least six months with the expectation of continuing employment. If you are a casual employee and not sure that you can apply for Unfair Dismissal, you should get legal advice.

For more information, see Unfair Dismissals on the Industrial Relations Commission website.

You have 21 days after your dismissal to apply for unfair dismissal. Dismissal can include a threat of dismissal. This means, in some circumstances, you may apply for unfair dismissal while you are still employed.

When am I not eligible to apply for unfair dismissal?

You may not be eligible to apply for unfair dismissal in the Industrial Relations Commission if you are:

• a private sector employee
• engaged under a contract of employment for a specific task, or for a specified period of time, if the period is less than six months
• an independent contractor
• serving a three month probation period if determined in advance
• employed on a casual basis for a short period of time, unless you are employed on a regular and systematic basis for at least six months
• an employee with particular arrangements in relation to your termination or condition of employment
• an apprentice or trainee.

What if 21 days have passed since my dismissal?

Depending on your circumstances, the Industrial Relations Commission may accept your application out of time. The Commission can look at:

• the reason for, and the length of, the delay in making the application
  
• any hardship that may be caused to you or the employer if the application is accepted or rejected
  
• the conduct of the employer relating to the dismissal.
  

If you want to apply for unfair dismissal out of time, you should get legal advice urgently.

How do I make an unfair dismissal application in the Industrial Relations Commission?

You will need to complete Form 7A – Unfair Dismissal Application. 

You can file the completed form:

• online using the NSW Online Registry
• in person at the Industrial Registry at Level 10, 10-14 Smith Street, Parramatta or at any NSW Local Court (except Central Local Court)
• by post.

If you are filing in person or by post, you must provide two copies and a PDF copy on a USB drive. The Commission may direct that a copy of the document is also provided in Microsoft Word format.

You will also need to pay a filing fee.

For more information, see Unfair Dismissals on the Industrial Relations Commission website. 

What will happen after my application is filed?

You will be given a date, time and location for conciliation and a copy of ‘A Guide to Conciliation of Unfair Dismissal Claims’. 

The Registry will then send your employer a copy of your application, details of the conciliation and Employer’s Reply which they will need to complete and return to the Registry within 10 days. The employer will also need to send a copy of the Reply to you. 

For more information, see Unfair Dismissals on the Industrial Relations Commission website. 

What will the Industrial Relations Commission consider in my unfair dismissal application?

In deciding your unfair dismissal application, the Industrial Commission can take into account:

• if the employer gave you a reason for the dismissal
• if the reason was factual and whether you were given an opportunity to respond
  
• if the employer gave you warnings about unsatisfactory performance
  
• your job duties leading up to dismissal
• if you requested reinstatement or re-employment with the employer
• any other matters that the Commission considers relevant.
  

For more information, see Unfair Dismissals on the Industrial Relations Commission website.

What can the Industrial Relations Commission do for me?

The Industrial Relations Commission can make a number of different orders, including:

• an order for reinstatement to your former position
• an order for re-employment in another position that the employer has available
• an order for remuneration for the loss of pay or entitlements for the period between dismissal and reinstatement/re-employment
• an order for compensation, not exceeding six months' pay.

If you want to discuss your circumstances, you should get legal advice.

Can I apply for unlawful termination?

You may be eligible to apply for unlawful termination with the Fair Work Commission if you are a national system employee but are not entitled to make a general protections dismissal application because the reason for your dismissal is not prohibited by the general protections provisions under the Fair Work Act.

You can apply if you have been dismissed because you:

• are a member (or not a member) of a union
• have been temporarily absent due to illness or injury
• have been absent for parental leave
  
• filed a discrimination complaint
• filed a complaint against your employer alleging unlawful conduct.
  

For more information, see Unlawful termination on the Fair Work Commission website.

You have 21 days from the date you were dismissed to apply for unlawful termination.

What is discrimination?

Discrimination is when you are treated unfairly because of a certain characteristic, such as gender, race, age, marital status, sexuality, disability, pregnancy, breastfeeding, transgender or transsexual status, or carer's or family responsibilities. 

For more information, see the Discrimination topic.

Where can I make a discrimination complaint?

If you believe you have experienced unlawful discrimination, you can make a complaint to Anti-Disc​rimination NSW​ or the Australian Human Rights Commission.

The State and Federal discrimination laws overlap for many issues, so you should get legal advice if you want to make a complaint. This is because:

• different agencies can provide different remedies
• if you make a complaint with one agency, you may not be able to transfer the matter to another agency
• it is usually not possible to make more than one complaint for one incident.

For more information about making a discrimination complaint, see the Discrimination topic.

Is there a time limit?

From an incident of discrimination, you have:

• 12 months to make a complaint to Anti-Discrimination NSW
• 12 months to make a complaint the Australian Human Rights Commission.

For more information about making a discrimination complaint, see the Discrimination topic.

What can I do when I am injured at work?

If you have a work-related injury or illness, you should get legal advice about your options. This can include getting advice about a workers' compensation claim.

You can find legal assistance by contacting the Workers Compensation Independent Review Office (WIRO).

What can I do if my employer has not paid me?

If you believe you are owed money by your employer for unpaid wages or entitlements, you can:

• discuss your issue with the human resources or industrial relations section in your agency
• contact the NSW Industrial Relations Commission for assistance.

If you are not sure what you are entitled to or how you can start Court action, you should get legal advice.