This information is only relevant to employers and employees in the WA state industrial relations system – sole traders, unincorporated partnerships, unincorporated trusts and some incorporated or not for profit organisations. Find out more on the Guide to who is in the WA state system page.
If you operate or are employed by a Pty Ltd business – you can find information on this topic on the Fair Work Ombudsman website.
Under State laws, employees cannot be dismissed if to do so would be harsh, unfair or oppressive. There must be a valid and fair reason for dismissal, such as:
- the capacity of the employee to do the job - for instance, consistent unsatisfactory work performance (which has been raised with the employee and the employee given further training / an opportunity to improve their work performance)
- the conduct of the employee - e.g. inappropriate behaviour or actions (including serious misconduct)
- the operational requirements of the business (including redundancy).
Serious misconduct (sometimes known as 'gross misconduct') is different to poor work performance. Serious misconduct is behaviour that could damage the employer's business, or is inconsistent with the employment contract. Examples of serious misconduct can include:
- causing a serious and imminent safety risk
- being under the influence of alcohol or drugs at work
- assaulting a workmate
- theft or fraud
- damaging the reputation or profitability of the business
- refusing to carry out a lawful and reasonable instruction.
Under federal laws, it is unlawful to terminate an employee on certain specified grounds such as race, colour, sex, sexual orientation, age, family or carer’s responsibilities and temporary absence from work due to illness or injury. For the full details of the grounds for which it is unlawful to terminate an employee, visit the Fair Work Ombudsman website at www.fairwork.gov.au.
When a decision has been made to dismiss an employee, employers should ensure the following requirements have been met:
- provide the required notice period
- pay out any unpaid wages, annual leave and long service leave owing to the employee
- provide a separation certificate if the employee requests it (a written statement stating the period of employment and type of job or work performed).
There are additional obligations on employers when employees are being made redundant. Further information is available on the redundancy page.
Unfair dismissal claims
If an employee believes they have been unfairly dismissed, they can make a claim for unfair dismissal to the Western Australian Industrial Relations Commission. An application must be made within 28 days from the date of dismissal and the former employee is required to provide a copy of the application to the employer. Late claims are accepted in some very limited circumstances, such as where the employee can show valid reasons for not being able to meet the 28 day requirement.
The Employment Law Centre of WA is an independent, community legal centre specialising in employment law. The ELC website www.elcwa.org.au has a range of guides and information for employees on the topic of unfair dismissal.
For information on making or responding to an unfair dismissal claim, visit the Western Australian Industrial Relations Commission website www.wairc.wa.gov.au