Unfair Dismissal in WA

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In Western Australia, workers who experience unfair dismissal may be covered by the federal unfair dismissal laws set out in the Fair Work Act 2009 (Cth), or the state unfair dismissal laws set out in the Industrial Relations Act 1979 (WA). This page deals with unfair dismissal in WA.

State or federal system?

 A worker is covered by the Fair Work Act 2009 (FWA) if they are employed by a national systems employer.

National systems employers include constitutional corporations and Commonwealth government employers. Constitutional corporations include foreign corporations and trading or financial corporations formed within the limits of the Commonwealth. Commonwealth government employers include federal government departments and agencies such as the Immigration Department and the Australian Human Rights Commission.  National systems employees may make unfair dismissal claims to the Fair Work Commission.

Western Australian employees who are not employed by a national systems employer are covered by the Industrial Relations Act 1999 (IR Act). This includes anyone who is employed in the WA public service and people who are employed by private entities that are not corporations such as employees of sole traders, incorporated associations, and trusts and partnerships. Claims under the IR Act are made to the WA Industrial Relations Commission (the WAIRC).

Unfair dismissal under the IR Act

Under section 23A of the IR Act, the WAIRC may determine that a person was unfairly dismissed if they were dismissed in a way that was harsh, oppressive or unfair. 

In determining whether a dismissal was harsh, oppressive or unfair, the WAIRC may have regard to whether the person was on probation and whether they had been employed for more than three months. 

The WAIRC may be also be guided by its previous decisions in determining what is harsh, oppressive or unfair. Matters that have been taken into consideration in prior decisions include:

• if the matter is performance-related, whether the criticism was justified and whether person was given the opportunity to rectify the problem;
• if it is related to misconduct, whether the employee was notified of the misconduct;
• the manner in which the dismissal was effected. 

A person will not be found to have been unfairly dismissal if they were employed for a fixed term and the period of employment expires and is not renewed. 

If the WAIRC finds that a person was unfairly dismissed, it may order that they be reinstated to their former position and/or be paid lost remuneration. If remuneration is not practical, it may order that the employer pay compensation to the employee for the loss or injury caused by the dismissal. The amount of compensation must not exceed the equivalent of six months’ wages.

Applying to the WAIRC for unfair dismissal

An unfair dismissal claim can be made to WAIRC by submitting a Form 2 – Unfair Dismissal Application. This application must generally be made to the WAIRC within 28 days of the termination of employment. However, the Commission may allow an application out of time if it believes that it would be unfair not to do so. 

An employer will be given the opportunity to respond to the application by filing a Notice of Answer. The matter will then usually referred to an informal conciliation conference, where the parties will be given an opportunity to state their cases and to explore the possibility of resolving the matter. If the matter is not resolved by conciliation it may be referred to a hearing.

The WAIRC is not required to observe strict legal technicalities or legal forms, and in is not bound by the rules of evidence. However, the WAIRC must act in good conscience, according to equity, and have regard to the substantial merits of the case.

Unfair dismissal under the Fair Work Act

Unfair dismissal under the Fair Work Act 2009 is different is some respects to unfair dismissal under the WA system. The FWA defines unfair dismissal as dismissal that is “harsh, unjust or unreasonable” and that is not due to a genuine redundancy. Under the FWA, a person has only 21 days to make a complaint about unfair dismissal.

Complaints about unfair dismissal under the FWA may be made to The Fair Work Commission by lodging a Form 2 – Unfair Dismissal Application. This application will then be provided to the employer and conciliation will be organised to assist the parties in resolving the situation. If conciliation does not resolve the issue, a formal conference or hearing may be scheduled.

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