Western Australian Industrial Relations Commission

General Information

Representation

The employee and the employer to a claim of unfair dismissal may be represented or they may represent themselves.  Parties can be represented by a lawyer, industrial agent or a relative or friend.  Except where the representative is a lawyer, the party being represented must file a Form 18 – Warrant to appear as an agent (link to Form 18) to confirm that another person is representing them. 

Making a claim of unfair dismissal

To commence a claim, an employee must 'refer' their claim to the Commission.  A claim must be set out in a Form 2 – Notice of claim of harsh, oppressive or unfair dismissal, which may be lodged in the Registry of the Commission in person, by online lodgement, by email, by facsimile or by post.

If a claim is lodged more than 28 days after the day on which the employee's employment was terminated, it will be 'out of time'.  The Commission cannot deal with an 'out of time' claim unless the employee convinces the Commission that it is unfair to not accept the claim.  (This will usually (but not always) be dealt with in a preliminary hearing.)

After a claim is lodged, the Registry will return two stamped copies of the claim to the employee.  The Registry will also give the employee some additional information to be passed on to the employer about filing a response.  The employee must then serve one copy of their claim with the accompanying information on the employer as soon as reasonably practicable.  To prove that the claim has been served on the employer, the employee must file a Form 4 – Statutory declaration of service within 7 days of serving the claim. 

Discontinuing a claim

An employee can discontinue a claim of unfair dismissal by filing a Form 14 – Notice of withdrawal or discontinuance.  If the parties reach agreement, it is generally a requirement that the employee discontinue their claim before the Commission.  If an employee no longer wishes to pursue their claim, they should also discontinue their claim. 

Answer is filed by the employer

If the employer intends to contest the employee's claim, they can file an answering statement.  This must be done within 21 days of the employer being served with the employee's claim.  It is important for an employer to file an answering statement.  If the matter proceeds to hearing and the employer has not filed an answering statement, they may not be heard on the matters other than those raised in the employee's claim. 

An answering statement must be attached to a Form 5 – Notice of answer and must summarise the facts on which the employer relies. 

The employer may raise some of the following issues in their answering statement: 

  • A proposal to settle the claim;
  • Jurisdictional objection;
  • That there are concurrent unfair dismissal proceedings in the Fair Work Commission; and/or
  • Facts that the employer says justified the dismissal.

The employer must lodge their Form 5 – Notice of answer attaching their answering statement in the Registry.  This can be done in person, by email, by post or by facsimile.  A copy will be returned for them to retain as well as a copy to serve on the employee.

The employer must serve a copy of their Notice of answer and answering statement on the employee as soon as practicable.  Once they have served the claim, the employer must file a Form 4 – Statutory declaration of service to prove that they have served the claim. 

Soon after the employer files their answering statement, the matter will be referred from the Commission's Registry to be dealt with by a member of the Commission.  The Commission may direct a party to elaborate on a particular issue before the matter goes any further. 

Conciliation conference

The Commissioner's Associate will contact both parties to find a mutually convenient time for a conciliation conference.  However, if a mutually convenient time cannot be found then the Commission can determine when the conference will be held.  Conferences generally run for 1.5 to 2 hours.  In the Commission's experience, having parties physically present at a conference makes the process more effective so the Commission expects that parties will physically attend the conciliation conference.  If a party cannot attend a conciliation conference, they can ask to attend by telephone or video-link.  The party making the request to provide good reasons why they cannot physically attend.

The room in which the conference is held is not a court room.  The Commissioner and the parties sit together at a table.  The purpose of the conference is to explore whether agreement can be reached between the parties, not to decide who is right and who is wrong.  The conference is not recorded and no transcript is produced.  Witnesses do not usually attend conferences and evidence is not taken. 

Conferences are private and are conducted on a 'without prejudice' basis.  This means that what is discussed at a conciliation conference cannot be used against one of the parties if the matter goes to hearing.  This allows the parties to explore all possible settlement options without fear of the other side using any offers or concessions made at the conference as an admission to various aspects of a claim. 

At the conference the employee is usually asked to outline their claim including putting his or her recollection of the events first and to comment, if necessary, on any matters raised by the employer in documents filed in answer to the claim.  The employer is then asked to do the same.  The Commissioner will attempt to assist the parties to reach an agreement.  The Commissioner may divide the conference and speak separately to each party for that purpose.

The Commissioner will not reach any conclusions or decide who is right or wrong at a conciliation conference but will try to assist the parties with a view to them resolving their dispute.

If agreement is reached it will be on terms which are mutually agreed between the parties.  It is to record the terms of any settlement in writing.  The Commission can provide the parties with a short form of settlement document for this purpose.  If no agreement is reached and the claim proceeds to hearing and determination in a formal hearing room setting, this will usually occur about 8 weeks later.  The date of the hearing may be discussed at the conclusion of the conference.

The Commission can hold several conferences if the parties need time to consider information presented to them. 

Preliminary hearings

There may be issues that have to be determined by the Commission before the merits of the claim can be dealt with.  These 'preliminary' matters may arise because of a deficiency in the employee's claim or because a party has made an 'interlocutory' application that must be decided before the substantive hearing, such as an application for discovery of documents.  It may also be necessary for the Commission to decide threshold issues such as whether the employee comes under the salary cap, whether the claim was brought within time or whether the Commission has jurisdiction to deal with the claim. 

If there are no preliminary issues to deal with, claims will often proceed directly to a substantive hearing if conciliation fails. 

Out of time

Where a claim for unfair dismissal is made out of time, it is for the employee to convince the Commission that it would be unfair not to accept the claim out of time.  There will generally be a hearing after which the Commissioner will determine that issue.  The employer does not have to participate in this hearing.  However, if the employer does not participate, the employee's contention that it is unfair for the Commission to not accept the claim out of time will go unchallenged. 

See 'Time limit' above. 

Jurisdiction

In some cases, the Commission will have to determine whether it is able to hear and decide the merits of a claim.  This is referred to as a 'jurisdiction hearing'.  Often the jurisdictional issues are: 

  • Whether the employer is a national system employee;
  • Whether the person making the claim was an employee; or
  • If the employee was employed by the WA government, whether the claim should be dealt with by the Public Service Arbitrator or the Public Service Appeal Board.

The Commission has a special responsibility to ensure that it only deals with claims that are within its jurisdiction.  If the Commission has doubts about whether it has jurisdiction, even if the parties agree to the Commission dealing with a matter, the Commission must be satisfied that it has jurisdiction to deal with the matter. 

Discovery

Discovery is intended to promote a fair hearing for both sides.  It is a process to ensure as much as possible that each party has the documents that relate to the matters in question. Documents are discoverable whether they support a party’s case or not.  Discovery helps to avoid surprise, puts parties on an equal footing, and helps to highlight the issues in dispute between the parties.  Either party can seek discovery of documents from the other party:  an employer can seek discovery from an employee, and an employee can seek discovery from an employer.  Documents discovered are not necessarily provided to the Commission.  The parties each choose to put to the Commission those documents which support their case or undermine the other party’s case. 

Informal discovery

The Commission will often ask the parties to engage in 'informal discovery'.  That means the parties will discuss which documents they are able to provide to each other.  They then provide each other with copies of the documents by agreement.  Once a party has received a document, it is up to them whether they use it in their case. 

Parties may prefer this process because they do not have to comply with strict deadlines imposed by the Commission, and they have greater control over the types of documents they can exchange. 

Formal discovery

If the informal discovery process breaks down, a party may apply for orders to compel the other party to provide discovery of documents.  This becomes ‘formal discovery’.  The Commission then becomes much more involved in supervising the process. 

Formal discovery is where the Commission makes orders requiring the parties to provide documents within specified timeframes.  It is good practice to ask the other party for the documents before making a formal application.  The Commission is unlikely to make orders if the party seeking discovery has not asked for the documents first. 

A formal application is made by filing and serving a Form 1 – Notice of application (general), stating that discovery is sought for specific types of documents. 

Applications for discovery in the Commission have three main considerations: 

  1. The documents sought must be relevant to a matter in question in the proceedings. Requests must be reasonable. 
  2. The documents must be in the ‘possession, custody or control’ of the other party.
    1. Possession means that the other party owns the document.
    2. Custody means that the party physically holds the document, regardless of whether they own the document; and
    3. Control means the party is entitled to obtain the document from someone else.

This means that a party cannot be required to provide discovery of a document which is not in their possession or custody or control. 

  1. The request must be ‘just’. That is, the party applying for discovery must satisfy the Commission that the documents are necessary for the party to have a fair hearing. 

If a document is ‘privileged’, the document does not have to be given to the other party.  The party should still make the other party aware of the document's existence, by describing it in a general way, but assert that it is privileged.  Commonly this will include ‘legal professional privilege’, which is correspondence between lawyer and client for the purpose of obtaining legal advice. 

There is more information about discovery in Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v The Western Australian Hotels and Hospitality Association Incorporated and Burswood Resort Hotel & Others (1995) 75 WAIG 1801, at page 1805, under the heading ‘General Discovery’. 

Substantive hearing

The substantive hearing is where the Commission will hear the evidence and argument about the merits of the employee's claim and the employer's counter argument. 

Order of proceedings

Proceedings before the Commission may be modified if the Commission determines that it is just to do so.  The Commissioner's Associate can give parties information about the order of proceedings in a particular matter.  However, generally a hearing will have the following structure: 

  • the employee may make a brief statement outlining their case and describing the evidence they will present;
  • the employee may then call witnesses;
  • the employer may cross-examine the witnesses;
  • the employee will be allowed to re‑examine on matters arising out of cross-examination;
  • the employee will then close their case;
  • the employer may then state their case and call witnesses;
  • the employee may cross-examine the employer's witnesses;
  • the employer will be allowed to re‑examine on matters arising out of cross-examination;
  • the employer may then make closing submissions as to the evidence and the law;
  • the employee may make closing submissions as to the evidence and the law; and finally
  • the employer then has a right of reply limited to any questions of law raised that could not reasonably have been anticipated.

At the end of the hearing, the Commission will either reserve their decision or deliver a decision from the Bench.  If a matter is quite straight forward, the Commission may deliver the decision immediately, at the end of the hearing.  More commonly, the Commission will reserve its decision, which means it will hand its decision down later. 

Standard of proof

The party making a claim has the burden of proving it. 

The standard of proof in matters before the Commission is the balance of probabilities.  This means the Commission must think something is more probable than not before it makes a finding about it.  If the probabilities are equal, the Commission will not make that finding.  Where a party makes a serious accusation such as that another party or a witness has committed a criminal act, the standard of proof is raised to meet the seriousness of the accusation. 

Evidence

Evidence is the relevant witness' testimony and documents or objects presented by the parties. 

Courts of law are bound by what is known as the rules of evidence.  These are complex and strict rules about what evidence can be relied on.  The Commission is not bound by the rules of evidence. 

However, some rules of evidence have been adopted by the Commission as a way to provide procedural fairness, both to the parties and to witnesses. 

The Commission is entitled to act on any material which is logically probative, even though it is not evidence in a court of law, and the Commission may receive hearsay evidence but will consider how much weight it will put on that evidence.  If a fact is important to a party's case, hearsay evidence will probably not be sufficient. 

Witnesses

The Commission may draw an adverse inference against a party who fails to call a key witness when it is in that party's power to call that witness and the failure to is unexplained.  The inference that can be drawn is that the evidence of that person would not have assisted the party's case. 

Examination-in-chief

Examination-in-chief is where the party who calls the witness has an opportunity to ask the witness questions.  There are some restrictions on the questioner during examination-in-chief.  Questions cannot be leading.  Another restriction is that questions must not be about matters that have no relevance to the issues in dispute, other than to impeach the credibility of the witness. 

Leading questions

A leading question is phrased to suggest an answer.  The opposing party may object to a leading question.  If an objection is sustained, the party may be asked to rephrase the question so that it is not leading. 

A leading question: 

"Didn't you see Claire taking money out of the till on Sunday night after the shop had closed?"

Not leading: 

"What did you see Claire do on Sunday night after the shop closed?"

Refreshing memory from documents

It may be difficult for some witnesses to give detailed evidence without referring to notes.  A witness is allowed to refer to notes if:

  • the witness demonstrates that they are at the limits of their memory and need to refresh their memory;
  • the witness has the documents required available;
  • the documents were made by the witness or can be verified by the witness;
  • the events were fresh in the witness's mind when the document was made or when they verified the document; and
  • the witness must have found the document to be accurate at the time of making it.

Witnesses are also allowed to refresh their memory by reviewing notes before giving evidence. 

Cross-examination

Cross-examination is an opportunity to test the evidence and account of events given by witnesses called by the opposing side.  Only one person is allowed to cross‑examine a witness. 

A person cross-examining a witness must put to the witness the nature of the case on which the cross-examiner relies in contradiction of that witness.  The cross-examiner must give the witness an opportunity to comment on any evidence they might have an opinion on, and the inferences to be drawn from it.  If a cross-examiner does not put every relevant piece of evidence to the witness, the Commission may conclude that the cross-examiner does not challenge the witness' evidence on that point. 

Re-examination

Re-examination is an opportunity for the party who called the witness to clarify, explain or qualify any aspects of evidence the witness gave during cross-examination.  It is not an opportunity ask questions of a witness that were not covered during examination-in-chief and is not for the purpose of the witness reiterating the evidence they gave in examination-in-chief. 

Submissions

Submissions are what a party says about the evidence in support of their contentions.  The Commission may ask parties to file written submissions.  Submissions draw together the evidence to establish the facts.  Submissions generally cannot be made during evidence.  At the beginning of each party's case, they have an opportunity to make brief opening submissions.  At the conclusion of the case, each party will have a further opportunity to highlight or explain various aspects of the evidence.  These submissions will hopefully encourage the Commission to draw conclusions favourable to their case. 

Submissions may also be about the law.

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.

 

The Public Service Arbitrator 'has exclusive jurisdiction to enquire into and deal with any industrial matter relating to' government officers.  Government officers who have been dismissed can only appeal that decision to the Public Service Appeal Board, chaired by a Public Service Arbitrator.  Government officers cannot access the general jurisdiction of the Commission.

1  Who is a government officer?

Government officers are:

  • every person employed on the salaried staff of a public authority;
  • public service officers;
  • parliamentary and electoral office staff;
  • members of the Governor’s Establishment; or
  • some employees appointed to the public service before 1 March 1985.

Most public servants will come within points (1) or (2).

Government officers are not:

  • teachers;
  • some railway officers; or
  • post‑secondary academics.

A full definition of 'government officer' can be found here.

2  Other government employees

Police Officers, Prison Officers and Youth Custodial Officers cannot challenge their employer's decision to terminate their employment for ‘loss of confidence’ in the Commission's general jurisdiction.  They must appeal the decision pursuant to the special regime created under the Police Act 1892 (WA), Prisons Act 1981 (WA) or the Young Offenders Act 1994 (WA). 

Police officers have a right of appeal to the Police Appeal Board for certain disciplinary matters.  Prison and Youth Custodial Officers have access to the Commission for substandard performance and disciplinary matters under Part 5 of the Public Sector Management Act 1994.

 

The Commission cannot deal with a claim for unfair dismissal if the employee's salary exceeds the prescribed amount, unless an industrial instrument applies to the employment. 

The prescribed amount can be found here.

An industrial instrument is: 

  • an award;
  • an order of the Commission (including General Order);
  • an industrial agreement; or
  • an employer-employee agreement.

The Termination, Change and Redundancy General Order applies to the employment of all State system employees.  An employee to whom the General Order applies is not subject to the salary cap and may make a claim of unfair dismissal to the Commission. 

Calculation of salary

The employee's salary is assessed based on the greater of –

  • the salary the employee actually received; or
  • the salary they were entitled to,

– for the 12 months immediately prior to the dismissal. 

Employees employed for less than 12 months

Remuneration received x 365


Days employed

Industrial Relations (General) Regulations 1997 (WA) reg 5(2)(c)

Employees on leave without full pay during last 12 months

Remuneration received +

Remuneration received ´ Days on leave without full pay


Days not on leave without full pay

Industrial Relations (General) Regulations 1997 (WA) reg 5(2)(b)

Only an employee can make a claim of unfair dismissal.  Some people may think that a person is an employee when they are actually an independent contractor.  If there is doubt, the Commission will consider the following factors to determine whether the person is, in fact, an employee.  Most importantly, the Commission will look at the totality of the relationship, weighing up all of these factors.  No one factor is determinative.  Under some statutory schemes, such as workers' compensation and payroll tax, certain people are 'deemed' to be employees.  This does not automatically make them employees for the purpose of an unfair dismissal claim. 

Control: if a hirer exercises a high degree of control over a person, it is more likely that the person will be an employee.  The person is more likely to be an employee if their hours and location of work are determined by the hirer.  A person who enjoys a high level of autonomy over where and when they work is more likely to be an independent contractor. 

Right to work for more than one hirer:  if a person is entitled to work for more than one hirer, this will tend to indicate that they are an independent contractor.  The Commission will look at the reality of the situation; if a person has the right to work for other hirers but in reality does not because they reasonably fear reprisal from the first hirer, then this will weigh against the person being found to be an independent contractor. 

Tools and equipment:  if a person has to supply their own tools and equipment to perform work for the hirer, the Commission is more likely to find that the worker is an independent contractor.  The cost of the tools and equipment is relevant.  If the cost is high (for example, the purchase of a truck), then this will tend to indicate that the person is an independent contractor.  If the cost is low (such as a bicycle), this will not weigh so heavily for the person having the status of an independent contractor. 

Subcontract out or delegate:  employment is a personal relationship.  If a person has the right to delegate the hirer's work to a subcontractor, this will tend to indicate that they are independent contractors.  However, if the person is simply 'shift swapping' – that is, arranging for the work to be done by someone else also in the hirer's employ – then this factor will not weigh so heavily. 

Uniform and branding:  if a person is required to wear a uniform and branding of the hirer, this may tend to indicate that they are an employee.  This factor will be less important when the person has little or no interaction with the public. 

Income tax deductions:  the way the hirer pays or does not pay income tax in relation to the person is of little or no effect.  However, if the person has an ABN, produces invoices and collects GST, then this will tend to indicate that the person is an independent contractor.  If the hirer dictates to the person how, when and how much they are to invoice for, this will count against the person having the status of an independent contractor.

Paid hourly or by pieces:  if a person is paid an hourly rate, this will tend to indicate that they are an employee.  If they are paid based on output, such as a piece-rate, this may indicate that they are an independent contractor.  A person receiving a piece-rate is not excluded from being an employee.  What is important is whether there is some chance that the employee will make a profit or loss on the job.  If so, this indicates that the person is an independent contractor. 

Discipline:  if a hirer disciplines a person, this will tend to indicate that they are an employee.  If a hirer has to discipline an independent contractor, they will tend to simply not reengage the person. 

Leave entitlements:  a person who is not entitled to paid leave is not automatically an independent contractor because they may be a casual employee.  However, if a person is entitled to paid leave, this will tend to indicate that they are an employee. 

Advertising and benefit of good will:  if the person advertises their own business and benefits from any goodwill, they are likely to be an independent contractor.  That is because it gives them the appearance of running their own business. 

Business expenditure:  if a person's ratio of income to business expenses is quite high – that is, their income only modestly exceeds their business expenses – this tends to indicate that they are an employee. 

Domestic Service:  Under the Industrial Relations Act, people who work in domestic service in a private home are not employees, unless: 

  • more than 6 boarders or lodgers are in that home for pay or reward; or

the person is employed by a person who is not the occupier or owner of the private home.

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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