The information on this page applies only to employers and employees in the WA state industrial relations system. The state system covers businesses which operate as sole traders, unincorporated partnerships, unincorporated trust arrangements as well as any incorporated associations or not for profit bodies that are not trading or financial corporations. The Guide to who is in the WA State System has more detail.
This information does not apply to any business which operates as a Pty Ltd business and is a trading or financial corporation nor to any incorporated association or not for profit body that is a trading or financial corporation. These businesses and organisations are in the national fair work system and should visit the Fair Work Ombudsman website for information on employment laws.
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