Western Australian Industrial Relations Commission

What is the claim about?

An unfair dismissal claim is about whether the employer exercised their lawful right to dismiss in a way that was harsh, oppressive or unfair in all of the circumstances.  The Commission can award reinstatement or compensation up to a maximum of 6 months of the employee's wages. 

The claim focusses on two aspects of the dismissal: 

  • whether the penalty of dismissal was appropriate in the circumstances; and/or
  • whether the employer's procedure in arriving at the decision to dismiss was unfair to the employee and therefore it should not be allowed to stand.

A failure by the employer to adopt a fair procedure in reaching the decision to dismiss the employee does not automatically mean that the dismissal was unfair. 

Types of dismissal

There are two main kinds of dismissal: 

  • dismissal on notice; and
  • summary dismissal.

Dismissal on notice may be justified for conduct that is not serious enough to justify summary dismissal. 

Employment may also terminate due to: 

  • redundancy;
  • termination by the effluxion of time (fixed term contracts);
  • abandonment of employment; and

Dismissal on notice

Dismissal on notice occurs when an employer exercises their lawful right to bring the employment relationship to an end.  They bring the employment relationship to an end and either have the employee 'work out' the notice period or pay them 'in lieu' of notice.  A claim of unfair dismissal is about whether, in the circumstances, the decision to end the employment was harsh, oppressive or unfair. 

What makes a dismissal 'harsh, oppressive or unfair'?

The question is whether the legal right of the employer to dismiss the employee has been exercised so harshly or oppressively against the employee as to amount to an abuse of that right.  It is necessary to consider whether an employee has received 'less than a fair deal' or 'a fair go all around'. 

In considering whether an employee got 'a fair go all around', the Commission is likely to consider such things as whether the employee had an opportunity to respond to allegations or where the employee’s performance was inadequate, an opportunity to improve their performance.  The Commission found that a dismissal was not unfair where an employer gave the employee ample opportunity to improve their performance before being dismissed for substandard performance or incompetence.  In other cases, the Commission found that a dismissal was unfair because the employee was not given an adequate opportunity to respond to the employer's proposed decision to dismiss. 

Summary dismissal

A summary dismissal occurs when an employer dismisses an employee without notice.  This is only justified when the employee does something that is fundamentally inconsistent with the contract.  Summary dismissal may follow a finding that the employee has engaged in serious misconduct.  In every case, the conduct by the employee must be so destructive of confidence that it warrants immediate termination. 

Some common grounds for summary dismissal are: 

Wilful disobedience:  not every act of wilful disobedience will justify summary dismissal.  Summary dismissal will generally only be justified when an employee has failed to obey a lawful order 'in such a way as to amount to an intention by the employee to no longer be bound by an essential condition of the contract of employment'.  Disobedience of an isolated direction by the employer is probably not sufficient to justify summary dismissal; habitual neglect or refusal to comply with a policy of the employer may be sufficient. 

Criminal offences:  the conduct is what justifies summary dismissal; that the conduct amounted to a criminal offence does not, of itself, warrant summary dismissal.  Conduct that is not directly related to the employment may justify summary dismissal if where there is a connection with the employment.  An assault on a superior, even if outside of work, has been found to warrant summary dismissal. 

Offensive language:  offensive language will not justify summary dismissal as easily as it once did.  The nature of the workplace and its culture will be a consideration.  However, 'culturally insensitive remarks' have been found to justify summary dismissal. 

Dishonesty:  not all dishonesty is sufficient to warrant summary dismissal.  The dishonesty must be inconsistent with the employee's duty towards the employer 'and the continuance of confidence between them.' 

Carelessness:  forgetfulness will probably not justify summary dismissal unless the consequences to the employer are serious, or the forgetfulness is repeated.  Summary dismissal for a lapse in attention is more likely to be warranted in cases where the employee's position requires them to be alert.

Incompetence:  for incompetence to justify summary dismissal, the employee must have represented to the employer that they are competent to do the job, and there must be actual incompetence at that job.  If an employee does not make any representation about competence of a skill, then summary dismissal may not be warranted.  It will be more difficult to justify summary dismissal for incompetence in relation to unskilled employees.

 

Contact Us

Western Australian Industrial Relations Commission
17th Floor
111 St Georges Terrace
PERTH WA 6000

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
Free Call : 1800 624 263

Free Fax :1800 804 987

Email : Registry

 

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