Unfair Dismissals & Denial of Contractual Benefits
The Industrial Relations Act 1979 allows for a person, who is or was an employee, to make a claim to the Industrial Relations Commission that they have been:
(i) harshly, oppressively or unfairly dismissed from employment; and/or
(ii) denied by their employer a benefit, not being a benefit under an award or order, to which the employee is entitled under their contract of service.
If you wish to make a claim to the Commission, you must complete comply with the following procedures:
- Complete and file a Form 2 - Notice of Application (s.29(1)(b)(i), Unfair Dismissal; or complete and file a Form 3 - Notice of Application (s.29(1)(b)(ii), Denial of Contractual Benefits
- The applicant lodges their application (+ 2 copies) with the Registry at the Commission. The filing fee is $50.00 for a claim for unfair dismissal and/or contractual benefits.
- A claim for unfair dismissal and/or denial of contractual benefits may be lodged electronically via the Commission's website www.wairc.wa.gov.au (regulation 5 refers)
- A file number is allocated and 2 copies are returned to the Applicant. The original is retained for the Commission's file.
- Applicant serves 1 copy on the employer (by hand, mail or registered mail, whichever is preferred).
- Once the applicant has served a copy on the employer, they then complete and have witnessed a Form 4 - Statutory Declaration of Service and return it to the Commission. This confirms to the Commission that the respondent has been served with the application.
- The employer has 21 days from the date they receive the application to respond.
- If the employer chooses to respond, they complete a Form 5 - Notice of Answer and Counter Proposal. The employer may also attach a supporting letter, note and/or other documents to it.
- The employer lodges the Form 5 and any attachments (+ 2 copies) together at the Commission. If the employer chooses to respond, they can also do so electronically via the Commission's website www.wairc.wa.gov.au. There is no fee to lodge a Notice of Answer & Counter Proposal (http://www.wairc.wa.gov.au/Files/Forms/Form_5.pdf). The original is processed and retained for the commission's file. The 2 copies are returned to the Respondent.
- The respondent then serves a copy upon the applicant (by hand, mail or registered mail, whichever is preferred).
- Once the respondent has served the Form 5 - Notice of Answer and Counter Proposal, they then complete and have witnessed a Form 4 - Statutory Declaration of Service and return it to the Commission. This confirms to the Commission that the applicant is in receipt of the reply.
- If (after the 21 days has lapsed) the applicant chooses to proceed with the application (whether they have received an answer or not), they send a request for hearing to the Registry.
- The Commission then arranges a conciliation conference between the parties to assist them to resolve the issue.
See also 'Representation'.