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Unfair Dismissal in South Australia

Written by Michelle Makela

Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.

Employees in South Australia may fall within one of two different sets of unfair dismissal laws, depending on the entity or person that employs them.  If you are a South Australian public sector employee employed by the State or local government, you are covered by the South Australian industrial relations system, the unfair dismissal laws of which are contained in the Fair Work Act 1994 (SA).  If you are a private sector employee, you are covered by the national workplace relations system, the unfair dismissal laws of which are contained in the Fair Work Act 2009 (Cth).

What is “unfair dismissal”?

You can be dismissed from your job in a number of ways, including by having your employment terminated, or if you are forced to resign under pressure because of your employer’s behaviour. Under both the South Australian Fair Work Act 1994 and the federal Fair Work Act 2009, whether you are unfairly dismissed from your job depends on whether the dismissal was “harsh, unjust or unreasonable”. Common scenarios where an employee may be unfairly dismissed include where a redundancy is not a genuine redundancy, where no reason is given to the employee for the dismissal, or the employee was dismissed for poor performance but never warned that they were performing poorly.

Unfair dismissal claims for private sector employees in South Australia

Private sector employees in South Australia can bring an unfair dismissal claim under the Fair Work Act 2009 (Cth) before the Fair Work Commission. Applications for making unfair dismissal claims must be lodged with the Fair Work Commission within 21 days of the dismissal. For more on the unfair dismissals in the private sector, refer to our articles on Unfair Dismissal laws.

Unfair dismissal claims for public sector employees in South Australia

Unfair dismissal claims made by public sector employees in South Australia are made to the Industrial Relations Commission of South Australia by submitting the appropriate form. The claim must be made within 21 days of the dismissal (or later with the Commission’s approval). Certain employees are excluded from bringing an application, including apprentices under training contracts, casual employees who do not have consistent hours and employees who are not covered by an award and who have an annual remuneration (excluding super) of $135,211 or more.

Procedure for unfair dismissal claims in South Australia

If you lodge a form to make an unfair dismissal claim, your employer will then have an opportunity to file a response to the application, after which you 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 member of the Industrial Relations Commission and you can be represented by a lawyer. At the conciliation the parties may agree to the employer making payment to the employee, or making 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 Industrial Relations Commission.

Matters which the SAIRC will consider in an unfair dismissal claim

The South Australian Industrial Relations Commission 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 has observed requirements for notice of termination and pay under the relevant worker’s compensation legislation (if applicable).

Relief for unfair dismissal at the SAIRC

If a Commissioner determines that you are successful in proving that your dismissal was harsh, unjust or unreasonable, he or she may then order that you be re-employed in your 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 Commission may order that you be re-employed in another position. The last resort – if re-employment is not possible at all – is for the Commission to make an award of financial compensation. This compensation is capped at either $67,606 or half your annual remuneration, whichever is greater. Further information can be found in the South Australian unfair dismissal guide.

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