Western Australian Industrial Relations Commission

Unfair Dismissals and Contractual Entitlements

Unfair Dismissals & Contractual Entitlements

Information Notes

These notes are intended to assist both the person making the claim (called the applicant) and the person named by the applicant as the employer (called the respondent) to understand the process involved when a claim of unfair dismissal or of entitlement to a benefit under a contract of employment is made to the Western Australian Industrial Relations Commission (WAIRC).

It is important to note 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 arose following the “Work Choices” changes to the Commonwealth Workplace Relations Act 1996 in March 2006 and has been continued by the operation of the Commonwealth Fair Work Act 2009 from 1 July 2009. More information is contained here.

The registry of the WAIRC will still accept all claims of unfair dismissal made to it because at the point the claim is lodged for filing the WAIRC will not know whether the person named by the applicant as being the former employer is correctly named, or whether it is a trading or financial or a foreign corporation. However if the person named by the applicant as being the former employer replies to the claim stating that they were not the former employer, or that the former employer is a trading or financial or a foreign corporation, the WAIRC is likely to deal with that matter before it proceeds to enquire into and deal with the claim itself.

What is a claim of unfair dismissal or a claim of an entitlement to a benefit under a contract of employment.

  • A claim of 'unfair dismissal' is where an employee who has been dismissed claims that the dismissal was harsh, oppressive or unfair.
  • A claim of an entitlement to a benefit under a contract of employment is where an employee claims they are entitled a benefit under their employment contract which has been denied to them by their employer. (Note that claims for non-payment of a benefit under an order or Award of the WAIRC, or for alleged breaches of the Minimum Conditions of Employment Act 1993, are to be made to the Industrial Magistrates Court, not to the WAIRC.)

Who can make a claim of unfair dismissal or a claim of an entitlement to a benefit under a contract of employment?

Is there a fee to lodge a claim? 

  • The fee to lodge a claim of unfair dismissal or of an entitlement to a benefit under a contract of employment is $50.00.  If lodging both claims simultaneously, there is only one $50.00 fee.

How long does an employee have to make a claim?

  • For a claim of unfair dismissal – the claim must be referred to the WAIRC not later than 28 days after the day on which the employee's employment is terminated.

If 28 days after the day on which the employee's employment was terminated have passed, can the employee still make a claim of unfair dismissal?

Yes, but the claim will be “out of time”. Section 29(3) of the Industrial Relations Act 1979 states that the WAIRC may accept a claim of unfair dismissal that is out of time if the WAIRC considers that it would be unfair not to do so.

In practice, this means that the WAIRC will list the claim for a brief hearing to allow the applicant an opportunity to persuade the WAIRC that it would be unfair not to accept the claim out of time. The respondent will be given the opportunity to reply to the applicant’s submissions. If the applicant fails to persuade the WAIRC, the claim will be dismissed; if the applicant does persuade the WAIRC, the claim will then be allowed to proceed.

Factors which are relevant to the WAIRC deciding whether it would be unfair not to accept the claim out of time will vary from case to case. The length of the delay, the reasons for the delay, and the merits of the claim of unfair dismissal will usually be relevant factors.

Special circumstances are not necessary but the WAIRC must be positively satisfied that the prescribed period should be extended. The starting position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it fair to accept the claim out of time.

Any steps taken by the applicant to contest the dismissal, other than making the claim of unfair dismissal, will be relevant because it will show that the decision to terminate is actively contested. This may favour accepting the claim out of time.

Prejudice to the respondent, including prejudice caused by delay, will go against accepting the claim out of time. The mere absence of prejudice to the respondent is an insufficient basis to accept the claim out of time.

Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the WAIRC’s discretion.

These considerations, or "principles", are not exhaustive and, putting to one side the uncontestable proposition that there must be something positively to satisfy the Commission that it would be unfair not to accept the referral out of time, none of them is necessarily decisive and each case will turn upon its own individual facts and circumstances.

The leading case on this issue is Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51.

What are the essential elements of a claim?

The applicant must complete a form which will, when correctly completed, contain the relevant information. Please note -

  •  The applicant must correctly identify the employer, i.e. the legal entity which employed the applicant.
  • If claiming unfair dismissal, an applicant must state why they believe the dismissal was unfair (question 20 of the particulars of claim) and what they are seeking from the WAIRC, for example reinstatement or compensation (questions 20, 22 and 23 of the particulars of claim for unfair dismissal).
  • If claiming an entitlement to a benefit under a contract of employment, the applicant must specify what benefit they claim they are entitled to and what it is they are claiming (question 20 of the particulars of claim for denial of contractual benefits)

What should you do if you receive a claim of unfair dismissal or a claim of an entitlement to a benefit under a contract of employment?

 If you dispute any aspect of the claim you should complete a Form 5 - Notice of Answer, which states whether you oppose the claim and gives space for you to set out your reasons for doing so. Send your Notice of Answer to the WAIRC’s Registry for filing, within 21 days of receiving the claim.  After filing your Notice of Answer, the Registry will return stamped copies to you along with information about how you then serve a copy of the filed Notice of Answer on the applicant.

Not completing a Notice of Answer will not prevent the WAIRC from enquiring into and dealing with the claim, but it might prevent the WAIRC from taking your viewpoint into account when it does.

There is no fee to lodge a Notice of Answer.

Merely because a claim has been made does not mean the allegations contained in it are accurate. If you are a member of an industry association, you may contact them for advice on the claim and how to respond to it. See also 'Representation'.

What happens next?

 After the Notice of Answer has been received or, if one is not received, after the time for receiving it has passed, usually the claim will proceed to a conciliation conference before a member of the WAIRC or a Deputy Registrar.

What is a conciliation conference?

  • It is an informal process involving an independent person who will endeavour to assist an applicant and a respondent to reach an agreed resolution of the dispute between them.
  • The WAIRC in most cases is obliged by the Industrial Relations Act 1979 to pursue conciliation 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; In particular details of any offer to settle the matter cannot be referred to in any later proceedings.
  • How the conciliation is conducted is a matter for the WAIRC to assess depending on the circumstances so what follows is a general guide only. 

Who is the conciliator? 

  • A Commissioner or a Deputy Registrar will normally chair a conciliation conference.

When and where is the conciliation conference held?

  • Conferences are mostly held at the WAIRC in Perth, but can be held in regional centres. If the applicant and the respondent are in different locations the conference is sometimes held by means of video or by telephone.
  • The conference is usually arranged by the Commissioner's Associate. The parties are usually notified by letter, but in cases of urgency may be notified by telephone or electronic mail.

Who can attend the conference? 

  • The applicant and the respondent should attend. In the case of the employer, an appropriate person from senior management who has authority to agree to a settlement should attend.
  • An applicant or respondent may have a friend or person attend the conference to give them support (i.e. not as their representative) if the Commissioner allows. This should be raised with the Commissioner's Associate before the start of the conference.

Do I need representation? 

  • It is not necessary for an applicant or respondent 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 a list of possible representatives. We are not permitted however to recommend any particular person.
  •  To have someone other than a lawyer represent you, you must appoint them in writing 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 set out in regulations. The registration process for agents does not involve any application of standards of competency by the WAIRC. The fact that a person is registered as an agent under the Industrial Relations Act 1979 does not mean that person has any particular qualification, or has particular skills.
  •  You may have another person represent you, such as a family member or a friend. You must appoint them in writing by lodging a Form 18 'Warrant to Appear as Agent'.
  •  The applicant or respondent being represented is responsible for the actions of their representative.
  •  The person or persons who attend the conciliation conference should have knowledge of the matter and should have the authority to act and make decisions.
  • If you are unrepresented in the conference, the conciliator will assist you with advice about procedure. The conciliator cannot, however, assist you in preparing or putting your case.

Note: It is prudent for any person choosing to be represented by a lawyer or registered agent to establish beforehand what costs they will charge.  The WAIRC does not usually award costs for representation.

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. Please advise the Associate the day before that you intend to do so.
  • 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 letters which set 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 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.
  • Although conciliation conferences are informal, they are conducted in a proper and courteous manner. There is no required dress, but most people attending conciliation conferences dress neatly.

What should I say?

Conciliation conferences are informal so you will have some freedom how you 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 dismissal was unfair?
  •  Describe how the dismissal was carried out? Were you given warnings or 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 dismissal?
  •  How was the dismissal carried out? Had any warnings been 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.
  •  Usually at the outset of the conference the conciliator 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 conciliator will endeavour to facilitate discussion between the applicant and the respondent with a view to them resolving their dispute. Ordinarily the conciliator will not decide who is right or wrong and cannot decide on any outcome at a conciliation conference.
  •  It is not unusual for the conciliator to "divide" the conference and speak separately with the parties. This gives 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 used against one of the parties in a later arbitration.

What are the likely outcomes?

  • If the conciliator is a Commissioner, and parties reach a resolution to the matter during the conciliation process, the Commissioner may if the parties agree -
  • (a) Make an order giving effect to their agreement; or;
    (b) Make an order discontinuing the application without disclosing the terms of the agreement.
  • If the conciliator is a Deputy Registrar, and the parties reach an agreement, the conciliator will refer the agreement to the Chief Commissioner for a Commissioner to make the agreed orders.
  •  If the parties fail to reach a resolution during the conciliation and conciliation is exhausted, it is up to the applicant to decide whether he/she would like their claim listed for arbitration at a later date, where a decision will made by the WAIRC as to the merits of the claim. This takes place in a formal "courtroom" where the parties will be required to support their respective cases by presenting formal evidence on the record.
  •  The WAIRC will not allow the claim to be listed for hearing until it is satisfied that further conciliation would be unavailing.
  •  The Commissioner who presided over the conference ordinarily also presides over the hearing. However, the applicant or the respondent may object to the same Commissioner presiding over the hearing, in which event the Chief Commissioner will decide whether the same or another Commissioner should preside over the hearing. Any such objection should be made well before the hearing date.

Where do I lodge forms?

In Person

17th Floor
111 St Georges Terrace
Perth WA 6000

Hours: 8:30am - 4:30pm Monday to Friday (excluding Public Holidays)

Phone: (08) 9420 4444

Outside Perth Metropolitan
Free Call: 1800 624 263

By Mail

Western Australian Industrial Relations Commission
Locked Bag No. 1, Cloisters Square
PERTH WA 6850

Electronically

You may lodge your application online

By Fax

Fax: 08 9420 4500

Outside Perth Metropolitan
Free Fax: 1800 804 987

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 : mail reg

 

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