FAQs about unfair dismissal
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.
Unfair dismissal applications are heard by the Western Australian Industrial Relations Commission (WAIRC). The application must be received by the WAIRC within 28 days of the date of dismissal. A copy of the application must also be provided to the employer.
Late claims are accepted in some very limited circumstances, e.g. if valid reasons for not being able to meet the 28 day requirement can be shown.
The WAIRC website has information on how to make an application online or via a hard copy form.
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.
All state system employers are legally required to keep employment records that detail time worked, leave taken and pay received by employees.
Frequently asked questions about unfair dismissal
Can a claim for unfair dismissal be made if the job was not permanent?
Yes. Casual, contract and temporary employees can make an application for unfair dismissal.
Can probationary employees claim for unfair dismissal?
Probationary employees may make a claim of unfair dismissal. If the employee is subject to a period of probation and has been employed for less than three months, the Western Australian Industrial Relations Commission will take this into account in deciding if the dismissal was harsh, oppressive or unfair.
Will the claimant have to go to court?
Many unfair dismissal cases are resolved at a conciliation conference, which involves an Industrial Commissioner or Registrar assisting the employer and employee to reach agreement. If this is not successful, the matter is then listed for a formal hearing.
The WAIRC website provides a guide to unfair dismissal proceedings.
Can the parties have legal representation?
At the unfair dismissal hearing employers and employees can represent themselves. Parties may also be represented by a lawyer or a registered industrial agent.
Who is responsible for paying legal costs?
Employers and employees are generally responsible for their own legal and other costs in unfair dismissal cases.
Is reinstatement possible?
If the dismissal is found to be unfair, the Western Australian Industrial Relations Commission may order the employer to reinstate the employee to their former position or another suitable position. If it is not practical for the employee to go back to work for the same employer, the Commission may order that the employer pays compensation up to a maximum of six months’ pay.
What about lost earnings if reinstatement is ordered?
If some circumstances the Western Australian Industrial Relations Commission may order the employer pay the earnings lost by the employee as a result of the unfair dismissal.
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