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.
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.
Frequently asked questions about unfair dismissal
Yes. Casual, contract and temporary employees can make an application 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.
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.
At the unfair dismissal hearing employers and employees can represent themselves. Parties may also be represented by a lawyer or a registered industrial agent.
Employers and employees are generally responsible for their own legal and other costs in unfair dismissal cases.
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.
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.
For information on making or responding to an unfair dismissal claim, visit the Western Australian Industrial Relations Commission website www.wairc.wa.gov.au