This website applies only to residents and the law of New South Wales, Australia.

4. THE NSW SYSTEM (continued)

4.8 Remedies: what orders can the IRC make?

If the IRC decides that the dismissal was fair it will dismiss your application. If it decides you have been unfairly dismissed, a number of orders can be made.

Reinstatement

An order can be made requiring your employer to reinstate you by reappointing you to your previous position. The IRC may also order your employer to pay you back pay for the period between dismissal and reinstatement.

Re-employment

If the IRC decides it wouldn't be feasible to order reinstatement to your previous position, an order may be made for your employer to re-employ you in another suitable job with the company or organisation. In addition, the Commission may order your employer to pay you back pay for the period between dismissal and re-employment.

Continuity of Employment

If you have been reinstated or re-employed, the IRC can also order that the period of your employment is taken not to be broken by the termination so that you can retain any entitlements based on continuous service, such as long service leave and annual leave.

Compensation

If the IRC decides that reinstatement or re-employment are impracticable remedies, it may order your employer to pay you compensation. The maximum amount of compensation possible under the Industrial Relations Act is six months wages, based on your average earnings for the six months prior to your dismissal.

If you were employed for a period less than six months prior to your dismissal, the maximum amount of compensation cannot be more than the total amount you earned before being dismissed.

The IRC will consider a number of factors when deciding whether to order compensation and what amount to order. It will take into account whether you have made reasonable attempts to find another job and if you have another job, how much you have received in wages. It is also likely to consider:

How long you were employed by your employer;
How unfair the dismissal was;
Your ability to find alternative employment;
Your age and seniority; and
Your employment record with your employer.

You should use the above factors and compensation limits as a guide when attempting to negotiate an appropriate settlement with your employer at the conciliation conference.

Threatened dismissal

If your claim relates to a threat of dismissal, the IRC may order your employer not to dismiss you.

What if I am not satisfied with the IRC's decision?

If you are not satisfied with the IRC's decision, you may appeal to the Full Bench of the IRC. An appeal must be made within 21 days of the Arbitration decision. The Commission has a discretion to extend this time limit. If you wish to appeal, you should seek union or legal advice as soon as possible.