Western Australian Industrial Relations Commission

Unfair Dismissals and Contractual Entitlements

Information Notes

These notes are intended to assist both the person making the application/claim (called the applicant) and the person named by the applicant as the employer (called the respondent) to understand the process involved when an application for unfair dismissal or a contractual benefit claim is made to the Commission.

It is important to note that the Commission is prevented from dealing with an unfair dismissal application 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 Commission will still accept all unfair dismissal applications made to it because at the point that the application is lodged for filing, the Commission 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 application stating that they were not the former employer, or that the former employer is a trading or financial or a foreign corporation, the Commission is likely to deal with that matter before it proceeds to enquire into and deal with the application itself.

 

What is an unfair dismissal application or a contractual benefit claim?

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

Who can make an unfair dismissal application or a contractual benefit claim?

Is there a fee to lodge an application/claim? 

  • The fee to lodge an unfair dismissal application or a contractual benefit claim is $50.00.  If lodging both matters simultaneously, there is only one $50.00 fee.

How long does an employee have to make an application/claim?

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

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

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

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

Special circumstances are not necessary, but the Commission 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 application out of time.

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

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

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

These considerations, or "principles", are not exhaustive and, putting to one side the un-contestable proposition that there must be something to positively satisfy the Commission that it would be unfair not to accept the application 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 an application/claim?

When making an unfair dismissal application, the applicant must complete a Form 2 - Unfair Dismissal Application. 

When submitting a contractual benefit claim, the applicant must complete a Form 3 - Contractual Benefit Claim.

The Form 2 and Form 3 require information to be provided about the applicant and the employer, and require that specific questions be answered about the unfair dismissal or the contractual entitlement(s) allegedly owed.  In both instances, the applicant must correctly identify the employer, i.e. the legal entity which employed them.

What should you do if you receive an unfair dismissal application or a contractual benefit claim?

If you dispute any aspect of an unfair dismissal application, you should complete a Form 2A - Employer Response to Unfair Dismissal Application.  If you have received a contractual benefit claim and wish to dispute it, you should complete a Form 3A - Employer Response to Contractual Benefit Claim.

The Form 2A and Form 3A allow an employer to state whether they oppose the matter and to set out your reasons for doing so. You should send your response to the Commission’s Registry for filing, within 21 days of receiving the Form 2 and/or Form 3.  After filing your response, the Registry will return a stamped copy to you for your records.  There is no need for you to send a copy of your response to the applicant, as the Commission’s Registry will do this for you.

Not completing a response will not prevent the Commission from enquiring into and dealing with the matter, but it might prevent the Commission from taking your viewpoint into account when it does.

There is no fee to lodge a response.

Merely because an application or 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 matter and how to respond to it. See also 'Representation'.

What happens next?

After the response has been received or, if one is not received, after the time for receiving it has passed, usually the matter will proceed to a conciliation conference before a Commissioner, the Registrar 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 Commission in most cases is obliged by the Industrial Relations Act 1979 to pursue conciliation as far as possible, with formal arbitration being 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 Commission to assess, depending on the circumstances. Because of this, what follows is a general guide only. 

Who is the conciliator? 

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

When and where is the conciliation conference held?

  • Conferences are mostly held at the Commission in Perth, but they 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 link.
  • The conference is normally arranged by the Commissioner's Associate. The parties are usually notified by letter, but in cases of urgency may be notified by telephone or email.

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 (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, where you have not already nominated that representative within your Form 2 or Form 3, you must appoint them in writing by lodging a Form 11 - Notification of Representative Commencing or Ceasing to Act.
  • 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 Commission. 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 11.
  • 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 Commission 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 Commissioner’s Associate at least a week before the conciliation conference if you require an interpreter or if you intend to bring along someone with appropriate language skills to assist you.
  • 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 code, but most people attending conciliation conferences dress neatly.

What should I say?

Conciliation conferences are informal, so you will have some freedom as to 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 is the contractual benefit(s) you believe you are owed and why?
  • What are you seeking to resolve your matter?

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?
  • Is the contractual benefit claimed owing to the applicant?
  • 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 their matter 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 disclosed outside of the conference proceedings, nor 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 matter without disclosing the terms of the agreement.
  • If the conciliator is a Registrar or 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 they would like their matter listed for arbitration (hearing) at a later date, where a decision will made by the Commission as to the merits of the matter. This takes place in a formal hearing room where the parties will be required to support their respective cases by presenting formal evidence which forms part of the formal court record and in turn becomes a matter for the public record.
  • The Commission will not allow the matter to be listed for hearing until it is satisfied that further conciliation would be unhelpful.
  • he 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. Where this occurs, 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 via the Commission’s online lodgement system

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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