Unfair Dismissal in South Australia

When a person in South Australia is unfairly dismissed from employment, they may have recourse to complaints mechanisms either within the state or federal industrial relations systems depending on the sector where they were employed. This page deals with unfair dismissal in South Australia.

State or federal law?

Employees in South Australia may fall within either of two different sets of unfair dismissal laws, depending on the entity or person that employs them. 

South Australian public sector employees working for the state or local government are covered by the South Australian industrial relations system. These unfair dismissal laws are contained in the Fair Work Act 1994 (SA). 

Private sector employees are covered by the national workplace relations system. These unfair dismissal laws are contained in the Fair Work Act 2009 (Cth).

What is unfair dismissal?

Employment can end in several ways, including by having one’s employment terminated, or being forced to resign.

Under both the South Australian Fair Work Act 1994 and the federal Fair Work Act 2009, whether a person has been unfairly dismissed from a job depends on whether the dismissal was “harsh, unjust or unreasonable”.

Common scenarios where an employee may have been unfairly dismissed include where a redundancy was not a genuine redundancy, where no reason was given to the employee for the dismissal, and where the employee was dismissed for poor performance without a warning that they were performing poorly.

Complaining to the Fair Work Commission

Private sector employees in South Australia can bring an unfair dismissal claim before the Fair Work Commission (FWC) under the Fair Work Act 2009 (Cth).

Applications must be lodged with the FWC within 21 days of the dismissal.

When the FWC receives an unfair dismissal claim, it contacts the employer and notifies them of the claim. Parties are then invited to conciliation in the hope they can come to an agreement to resolve the situation.

If conciliation does not resolve the issue, the matter proceeds to either a determinative conference or a hearing.

The Commission will then make a decision, which will be published on its website. If the Commission finds that the dismissal was unfair, it may order the employee to be reinstated to the position. Alternately, it may order that the employee be paid compensation.

Complaining to SAET

Public sector employees can complain about unfair dismissal to the South Australian Employment Tribunal (SAET). The claim must be made within 21 days of the dismissal (or later with the Tribunal’s approval).

If a person makes an unfair dismissal claim to SAET, their employer will then have an opportunity to file a response to the application, after which they will be required to take part in an informal conciliation.

The purpose of the conciliation is to attempt to resolve the claim without having to go to a hearing. The conciliation is overseen by a Tribunal member and you can be represented by a lawyer. At the conciliation, the parties may agree to a resolution such as the employer making payment to the employee, giving an apology, and on some rare occasions, reinstating the employee.

If conciliation is unsuccessful, an arbitrated hearing will be held before a member of the Tribunal.

Matters the SAET will consider

The SAET must have regard to certain matters in reaching its decision as to whether an employee was unfairly dismissed. These matters are specified at section 108 of the Fair Work Act 1994 and include:

• whether the termination was made in compliance with the Termination of Employment Convention (Schedule 7 to the Act);
• whether the employer followed the rules for terminating employees under Schedule 8 of the Act;
• the degree to which the size of the enterprise affected the dismissal;
• whether there was a dedicated HR team with procedures and policies in place that were followed; and
• whether the employer observed requirements for notice of termination and pay.

Relief for unfair dismissal at the SAIRC

If a Tribunal member determines that the dismissal was harsh, unjust or unreasonable, they may then order that the person be re-employed in their original position. It is stipulated under the Act that re-employment is the preferred remedy for unfair dismissal, if it is possible and available.

If re-employment in the original position is not possible then the Tribunal may order that you be re-employed in another position.

If re-employment is not possible at all, the Tribunal may award financial compensation. This compensation is capped at either $79,714 or half of the person’s annual remuneration, whichever is greater.

Who cannot claim unfair dismissal?

Under section 382 of the Fair Work Act 2009, certain employees cannot apply to FWC in relation to unfair dismissal. This includes apprentices who are working under training contracts, casual employees who do not have consistent hours and employees who are not covered by an award and have an annual remuneration (excluding super) of more than the high-income threshold (currently $167,500).

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.