Information Notes
These notes explain the process involved in making a claim of unfair dismissal or of denied contractual entitlements in the Western Australian Industrial Relations Commission (WAIRC). These notes have been prepared for both applicants and respondents.
After reading these notes, you should have a better understanding of the processes involved and the role of the conciliator, how to prepare for a conference and what happens in the conference.
Unfair Dismissals
You should be aware that the WAIRC is prevented from dealing with a claim of unfair dismissal where the employer is a trading or financial or a foreign corporation. This arises following the Work Choices changes to the Commonwealth Workplace Relations Act 1996 in March 2006 and the operation of the Fair Work Act 2009 from 1 July 2009. More information is contained on this website here.
The WAIRC will still accept applications made to it because it will not know whether it is prevented from dealing with a claim at the point it is lodged for filing. However when the status of an employer is not clear parties may be required to provide further information which when provided may result in a claim not being able to proceed.
Enforcement of Contractual Benefits - Important Changes to the law from 1 July 2009
Where the employer is a trading or financial corporation, the WAIRC was prevented from 26 March 2006 from dealing with or resolving a claim of denied contractual entitlements by operation of the Work Choices changes to the Commonwealth Workplace Relations Act 1996. However on 1 July 2009 the Workplace Relations Act was repealed by the Fair Work Act 2009. From 1 July 2009 the WAIRC may be able to hear and determine a claim for by an employee that they have been denied by their employer a benefit under their contract of employment where the employer is a trading or financial corporation. More information is contained on this website here.
What is an application for Unfair Dismissal and/or Contractual Entitlements?
- 'Unfair dismissal' is where an employee claims that they have been harshly, oppressively or unfairly dismissed.
- 'Contractual entitlements' is where a benefit which is due under their employment contract (not an Award) has not been allowed to an employee.
- To lodge a claim for unfair dismissal and/or denial of contractual benefits is $50.
(Note that claims for non-payment of a benefit contained in an Order or Award of the WA Industrial Relations Commission, or for alleged breaches of the Minimum Conditions of Employment Act 1993 are referred to the Industrial Magistrates Court).
Who can make a claim?
How long does an employee have to make a claim?
What are the essential elements of a claim? (Applicants)
- Applicant must correctly identify the employer, i.e. the legal entity who employed the applicant.
- If claiming unfair dismissal the applicant must state why they believe the dismissal was unfair (question 20 of the particulars of claim) and what they are seeking (questions 21,22 and 23 of the particulars of claim for unfair dismissal)
- If claiming denial of contractual benefits the applicant must specify what benefit they were entitled to and what it is they are claiming (particulars of claim for denial of contractual benefits question 20)
What happens if you receive (are served) with a Notice of Application alleging unfair dismissal +/or denial of contractual benefits? (Respondents)
- The Application will have been made under Section 29(1)(b) of the Industrial Relations Act, 1979.
- Merely because an Application has been made does not mean the allegations contained in it are all accurate.
- If you dispute any aspect of the Application you should fill out a Notice of Answer and Counter Proposal giving details of your position in respect of the matters.
- There is no fee to lodge a Notice of Answer & Counter Proposal (Form 5 - Notice of Answer and Counter Proposal). If the employer chooses to respond, they can also do so electronically via the Commission's website www.wairc.wa.gov.au.
- If you are a member of an "umbrella" body such as an industry association, contact them for advice on the matter.
- After documentary requirements have been satisfied, the application will proceed to a conciliation conference of the parties presided over by a member of the Commission or a Deputy Registrar.
See also 'Representation'.
What is conciliation?
- Conciliation is a process involving an independent person endeavouring to assist parties to reach a resolution of the dispute between them.
- The Commission in most cases is obliged by the Industrial Relations Act, 1979 to pursue conciliation of disputes referred to it as far as possible with formal arbitration as the last resort.
- Conciliation conferences are conducted on a "without prejudice" basis. This means that statements (other than factual matters directly touching on the matter) made at a conciliation conference in an endeavour to effect a settlement cannot be subsequently used against one of the parties in the arbitration hearing; In particular details of any offer to settle the matter cannot be used against the offeror in later proceedings.
- It should be noted that how the conciliation is conducted is a matter for the Commissioner to whom a dispute has been allocated so it may vary depending on how that Commissioner sees it as appropriate to conduct any particular proceedings. Therefore these notes are a general guide only.
Who is the Conciliator?
- A member of the Commission or a Deputy Registrar will normally preside over a conciliation conference.
When & where is the conciliation conference held?
- Conferences are mostly held within the Western Australian Industrial Relations Commission, but are also held in regional centres. If the parties are in different locations the conference is sometimes held by means of a telephone conference.
- The conference is usually arranged by the Commissioner's Associate. The parties are usually notified by letter, but in cases of extreme urgency may be notified by telephone or electronic mail. In some instances the Commissioner (through the Commissioner's Associate) may raise issues with one or other of the parties to such conference.
Who can attend the conference?
- The employee and the employer are required to attend. In the case of the employer, this may be an appropriate person from senior management who has authority to agree to a settlement.
- An applicant or respondent may have a friend or person attend the conference in support (i.e. not as agent) if the Commissioner allows. This should be raised with the Commissioner's Associate at the start of the conference at the latest.
Do I need Representation?
- It is not necessary for a party to be represented in conciliation proceedings. However, parties may choose to be represented at a conciliation conference or may choose to come on their own. Representation can be by any adult person as an agent or by a legal practitioner.
- If a party wishes to be represented the Registry can provide you with a list of possible sources of advice. We are not permitted however to recommend any particular source.
- To have someone other than a lawyer represent you, you must give your authority by lodging a Form 18 called a 'Warrant to Appear as Agent'.
- Industrial Agents must be registered under the Industrial Relations Act 1979 in order to charge a fee for services.
- Changes to the Industrial Relations Act, 1979 in 1995 provide for the registration of paid agents who are subject to a code of conduct proclaimed by the Governor. The registration process for agents does not involve any application of standards of competency by the Commission. The fact of registration of an agent should not be construed as being a result of holding any qualification, or skill.
- You may also have any other person represent you such as a family member or friend. To speak on your behalf, they still require a 'Warrant to Appear' and cannot charge you any fee.
- The person or persons who attend the conciliation conference should have knowledge of the matter and should certainly have the authority to act and make decisions on behalf of the respondent.
- The party being represented is responsible for the action/s of any authorised representative.
- If you are unrepresented in the conference, the conciliator will assist you with advice about procedures. The conciliator cannot, however, assist you in preparing or running your case.
Note: No costs for representation are awarded by the Commission. It is prudent for any person choosing to be represented by a lawyer or paid agent to establish what costs will be charged before engagement.
See also 'Representation'.
Interpreters
- If English is not your first language you can bring along someone with appropriate language skills to assist you or request an interpreter.
- Seeking such assistance is important if you do not feel confident that you can present your case well in English.
How do I prepare for the conference?
- It will help to be well prepared. Here are some suggestions to consider:
- Know your case - Review what happened and be clear about what you want. Perhaps prepare a summary of the key events and dates.
- Documents - Ensure you bring any relevant documents such as medical certificates or warnings or material which sets out the terms of your employment
- Support - Consider bringing a support person and/or representative
- Advice - If you do not want to be represented in the conference, for cost or other reasons, consider seeking advice from a union, employer organisation, legal representative or industrial agent before the conference.
- Legislation - You may want to look at the relevant provisions of the Industrial Relations Act, 1979 and associated regulations.
- Attending the conference - While conferences are informal they are conducted in a proper, courteous manner. There is no required dress, but most people attending the Commission dress neatly.
What should I say?
This is an informal process so you will have some freedom to put your case. In general, the types of things you should include are:
Applicant:
- What happened and any other relevant facts.
- Why do you think the termination was unfair or unlawful?
- How was the termination carried out? Were you given warnings and a chance to put your side?
- What are you seeking to resolve your application?
- ...
Respondent:
- What happened and any other relevant facts
- What was the reason for termination?
- How was the termination carried out? Were any warnings given?
- What is an acceptable outcome?
- ...
What happens in the conference?
- The aim of the conference is to attempt to resolve the matters in dispute without the need for a formal Hearing.
- The conciliation process is usually commenced by bringing the applicant and the respondent ("the parties") together in a meeting (conference) to discuss the dispute.
- Usually at the outset of the conference the Commissioner will ask the applicant to summarise his/her claim and then ask the other side to briefly outline the respondent's position. Thereafter the parties are called upon to discuss ways and means to settle the matter.
- The Commissioner will usually endeavour to facilitate discussion between the applicant and the respondent with a view to them resolving their dispute. Ordinarily the Commissioner will not decide who is right or wrong and can not decide on any outcome at a conciliation conference.
- It is not unusual for the Commissioner to "divide" the conference and speak separately with the parties. Such discussions are on a without prejudice basis and confidential. They are an opportunity to canvas any proposal/s for resolution.
- The conference is private to the parties and is conducted on a "without prejudice" basis. This means that what is discussed at a conciliation conference cannot be subsequently of itself used against one of the parties in the arbitration hearing.
What are the likely outcomes?
- If the parties reach a resolution to the matter during the conciliation process, the Commission may if the parties agree -
(a) Make and order giving effect to their agreement; or;
(b) Make an order discontinuing the application without disclosing the terms of the agreement. - If the parties fail to reach a resolution during the conciliation process and the Commissioner concludes that conciliation is exhausted, the matter is then usually listed for arbitration where a ruling is made as to the merits of the matter. This takes place at a more formal "court type" hearing where the parties are required to support their respective cases by formal evidence.
- The Commissioner will not allow the application to be listed for hearing until satisfied that further conciliation would be unavailing.
- The Commissioner who presided over the conference ordinarily also presides when the matter comes on for arbitration. One or other of the parties may object to the same Commissioner hearing the matter in which even the Chief Commissioner is authorised to decide whether the same or another Commissioner should hear the matter. Any objection of this nature should be made before the matter comes up for formal hearing.
Costs
In general, parties bear their own costs.
Where do I lodge my claim?
In Person
Western Australian Industrial Relations Commission
16th Floor, 111 St George's Tce, Perth WA 6000
Hours: 8:00am - 5:00pm Monday to Friday
Tel 08 9420 4444
Fax 08 9420 4500
From outside Perth Metropolitan (FREECALL)
Tel 1800 624 263
Fax 1800 804 987
Electronically on the Commission's website www.wairc.wa.gov.au
By Fax to 08 94204500 or 1800 804 987 (if outside the metropolitan area)
Further Information
Frequently Asked Questions - answers to some of the most frequently asked questions.
WAIRC Library
Representation - Source of organisations, agents etc offering advice on termination & employment matters.
Forms
Decisions