New South Wales Consolidated Acts

OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - SECT 23A

23A Application for reinstatement of employee unlawfully dismissed under section 23

(1) In this section:
"reinstatement" includes re-employment.
"unlawful dismissal" means the dismissal of an employee in contravention of section 23.

(2) An employee who has been unlawfully dismissed may, within 21 days after the dismissal, apply to the Industrial Court of NSW for reinstatement. The Court may accept an application that is made out of time if it considers that there is a sufficient reason to do so.

(3) An industrial organisation of employees may make such an application on behalf of the employee.

(4) The Industrial Court of NSW may, on such an application, order the employer to reinstate the employee in accordance with the terms of the order.

(5) If the Industrial Court of NSW is satisfied that the applicant was unlawfully dismissed:

(a) the Court is to order the employee to be reinstated in his or her former employment or in any other employment that is no less advantageous to the employee, except as provided by paragraph (b), or

(b) if the employer satisfies the Court that it would be impracticable to reinstate the employee-the Court may order the employer to pay to the employee an amount of compensation determined by the Court to be appropriate in the circumstances (but not exceeding the amount of remuneration the employee would have received but for the dismissal in the period of 6 months following the dismissal).

(6) If the Industrial Court of NSW orders reinstatement under this section, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal.

(7) An application under this section may be made regardless of whether the employer has been convicted of an offence against section 23.

(8) The Industrial Court of NSW must not make an order on an application under this section if:

(a) another Act or a statutory instrument provides for redress to the employee in relation to the dismissal, and

(b) the employee has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument.

(9) Evidence of the fact that the Industrial Court of NSW has made an order under this section in respect of the unlawful dismissal of an employee is not admissible in proceedings for an offence against section 23.

(10) In any proceedings under this section, if an employee establishes that a matter referred to in section 23 (1) (a), (b) or (c) occurred or existed before the employee’s dismissal, it is presumed that the employee was dismissed because of that matter. That presumption is rebutted if the employer satisfies the Industrial Court of NSW that the matter was not a substantial and operative cause of the dismissal.

Note: Appeals against a decision of the Industrial Court of NSW under this section are dealt with under Part 7 of Chapter 4 of the Industrial Relations Act 1996 .