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Unfair Dismissal

An unfair dismissal occurs when an employer ends an employee’s employment in circumstances that are harsh, oppressive or unfair.  

The Commission can only deal with unfair dismissal applications from private sector employees where the employer is unincorporated – where the employer is a partnership, sole trader, or is a corporation which does not substantially engage in trading or financial activities (known as State system employee). This includes some local governments and non-for profit organisations.

The Commission cannot deal with an unfair dismissal application from a private sector employee where the employer is a trading, financial or foreign corporation (a 'constitutional corporation'), or the Commonwealth government (known as a national system employee).

Claims of unfair dismissal by many government employees are dealt with by the Public Service Appeal Board.

Critical information

  • You can submit an unfair dismissal application by filing a Form 2 – Unfair Dismissal Application.
  • Your application must be made within 28 days of your dismissal, unless the Commission decides that it would be unfair not to accept the application.
  • If your application is successful, and it is practical to do so, the Commission may order for you to be reinstated. If the Commission decides it is impracticable to reinstate you to your former role, it may order compensation for loss or injury. The compensation cannot exceed 6 months of your remuneration.

Disclaimer: It is important to note that the Commission does not have the power to deal with every case when someone is dismissed in what might be unfair circumstances.

Please refer to the Commission's Fact Sheets for further guidance on proceedings at the Commission.

 

What to expect out of the process

  1. Step 1 - Determining eligiblity

    Check if you are eligible to submit an application through the Commission. 

  2. Step 2 - Submitting an application

    If you believe that you are eligible, lodge a Form 2 - Unfair Dismissal Application with the Commission's Registry.

  3. Step 3 - Conciliation conference

    A conciliation conference is held between you and your former employer in order to assist you both to try and reach a mutually agreed resolution.

  4. Step 4 - Hearing

    If the parties do not reach an agreement at the conciliation conference, then a hearing is held where the Commission will make a binding decision on the matter.

Step-by-step guidance on the unfair dismissal process

Who can make an application?

To make an unfair dismissal application, you will need to show that:

  • you were an employee;
  • you have been dismissed from your employment;
  • you were employed by a State system employer;
  • your contract of employment was for a salary less than the amount prescribed by the Commission; and
  • your dismissal was harsh, oppressive or unfair.

It is important to note that employees on probation or employed for less than 3 months may make a claim of unfair dismissal but, in deciding whether a dismissal was unfair, the Commission will take these factors into account.

To make an application, you will need to provide the Commission with your employer's business name, ABN or ACN, and indicate whether your employment was covered by a state award or registered industrial agreement.

Please also note that the Commission cannot determine an unfair dismissal application if:

  • you are a government officer or another type of government employee, or
  • your employment was not covered by an industrial instrument (an industrial instrument is an award, order of the Commission, industrial agreement or an employer-employee agreement – see section 29AA(5) of the Industrial Relations Act 1979 (WA) and your salary is greater than the prescribed salary cap, which can be found in Maximum Salary Level for Lodging Certain Claims.

 

How do I submit an application?

 

Who is my employer?

Your employer is not necessarily the director, owner or manager of the business. To identify your former employer, one or more of the following may be helpful: 

  • group certificate;
  • pay slip;
  • letter of appointment;
  • job advertisement;
  • written employment contract or agreement; and 
  • performing a company or business name search.

You could also try to obtain company information from the Australian Securities and Investments Commission (ASIC) or the Department of Mines, Industry Regulation and Safety. 

 

What happens next?

After you have submitted your Form 2, the Commission’s Registry will:

  • check the form to make sure that it contains all the required information;
  • if the form is complete, send a copy of it to you for your records; and
  • serve a copy of it on your former employer. There is no need to serve a copy of your Form 2 on your former employer unless you are instructed to do so.

If your employer intends to respond to your claim, they can file a response. This must be done within 21 days of being served a copy of your claim.

After your application has been filed and your former employer has had an opportunity to file a response, your matter will be allocated to a Commissioner and listed for a conciliation conference.

What is a conciliation conference?

In the context of the Commission, a conciliation conference is a conference conducted by a Commissioner who can help the parties to resolve their employment dispute. The purpose of the conciliation is to explore whether an agreement can be reached between the parties, not to decide who is right or wrong.

Conciliation 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 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. The conference is not recorded, and no transcript is produced. Any visual or audio recording is strictly prohibited. An agreement may be reached during or after the conference, the parties have control over the outcome before the matter reaches the hearing stage. In contrast, if the matter goes to hearing, the Commission will decide the outcome of the matter.

For more information please read the Commission’s conciliation conference fact sheet by clicking here.

Possible outcomes of conciliation

  • Agreement may be reached during or after the conference.
  • If agreement is not reached, the Commission may hold further conferences depending on the circumstances, or list the matter for hearing.

What is a hearing?

A hearing is where the Commission receives arguments and evidence from both parties and makes a binding decision on a matter. It usually takes place in a room that is similar to a court room. There are two types of hearings: interlocutory or preliminary hearings and substantive hearings.

 

Interlocutory or preliminary hearings

There may be issues that have to be determined by the Commission before the merits or substance of an application can be dealt with. These preliminary (or interlocutory) matters may relate to an issue with the employee’s claim that needs to be resolved before the rest of the matter can proceed, such as an application for discovery of documents.

Some examples of preliminary issues include:

  • whether the Commission has jurisdiction to deal with the application;
  • whether the employee is under the salary cap; or
  • whether the Commission can accept an application that was made out of time.

There may be one or more interlocutory hearings before the substantive hearing to deal with preliminary or procedural issues.

A Directions hearing is similar to a preliminary hearing. It is where the Commission will set out how the matter will progress. This can include setting out a timeline for when things ought to occur such as discovery, or when things are to be filed with the Commission, such as outlines of submissions or witness statements.

 

Substantive hearing

A substantive hearing is where the Commission hears and determines the substance or merits of the employment or industrial issues in dispute.

For more information, please read the Commission's hearing fact sheet by clicking here.

For information on evidence, please read the Commission's evidence fact sheet by clicking here.

For information on representation and representing yourself, please read the Commission's representation fact sheet by clicking here.

Possible outcomes of a hearing

  • If your unfair dismissal application is successful, the Commission can award reinstatement or compensation up to a maximum of 6 months of your remuneration.
  • If the Commission makes an order in your favour, and your former employer does not comply with the order (for example, does not pay the compensation awarded as ordered by the Commission), you can apply to the Industrial Magistrates Court to have the Commission's order enforced. The Industrial Magistrates Court can also impose a penalty of up to $5,000 on the employer for non-compliance with the Commission's order.

 

Frequently asked questions

An employee can discontinue a claim by filing a Form 1A – Multipurpose Form. If the parties reach agreement, it is generally a requirement that the employee discontinue their claim before the Commission. 

A party to an unfair dismissal application can make an application to the Full Bench to review the decision of the single member of the Commission if they believe the decision was incorrect. An appeal is not an opportunity to re-run your case. Normally an appeal is heard and determined on the evidence and matters raised in the initial hearing before the Commission. This means that, in general, you will not be able to call witnesses to give evidence or to provide documents to the Full Bench which were not before the Commission at the initial hearing. Generally, the grounds of appeal need to demonstrate clearly that the original decision:

  • did not properly account for the evidence put at the hearing, and/or
  • erred in the application of the relevant law (which includes case law).

This means that when stating your grounds of appeal, you must specify where you believe the Commissioner erred in his/her findings. For each ground of appeal, you must state the particular areas of the Reasons for Decision where you believe the decision was against the evidence presented and/or why it is wrong in law. You must also clearly state the remedy you are seeking from the Full Bench, for example, for the application to be referred back to the Commission for further hearing and determination. You can appeal the Commission's decision to the Full Bench by lodging a Form 8 - Notice of Appeal Against a Decision Made by the Commission or the Industrial Magistrates Court. You must lodge the form within 21 days of the initial decision. After filing your Form 8, you must file and serve your appeal books within 14 days.

Given the legal complexity of most appeals, it is strongly recommended you seek independent legal or industrial advice before lodging your appeal. For more information on appeals, click here.

The Commission is committed to ensuring its information, facilities and services are accessible to all members of the Western Australian community. For more information on accessibility, please visit our Access and inclusion page.

For certain claims, you are able to make more than one claim with the Commission. For example, you can lodge both an unfair dismissal application and contractual benefit claim for the same employment relationship. However, you cannot pursue identical applications in both the Commission and the Federal Fair Work Commission.

The employee and the employer to an unfair dismissal application may be represented by another person or they may represent themselves. Parties can be represented by an industrial agent, union or employer association, lawyer, or a relative or friend. Except where the representative is a lawyer, the party being represented must file a Form 11 – Notification of Representative Commencing or Ceasing to Act to confirm that another person is representing them.

For more information, please click here to read the Commission's representation fact sheet.

 

Once the employer is notified by the Registry of your claim, they have 21 days to file a response to the claim. For more information about employers, please click here.

The time span of the unfair dismissal application process depends on each individual case and is not fixed. There will be many factors which will affect the length of the process, including whether the application proceeds to hearing, whether any interlocutory hearings are necessary and the complexity of the matter.

You can contact the Commission's Registry by email, phone or in-person. We also have helpful Fact Sheets which may assist in answering your questions.

The filing fee for filing an application for unfair dismissal is $50.00
In general, the only additional costs for pursuing a claim are agent or legal fees if applicable, and your own administrative costs such as photocopying or purchasing transcript of the proceedings. Each party pays their own costs in relation to preparation of their case, unless the Commissioner orders otherwise.

It depends on the circumstances. Sometimes, but not always, a resignation can amount to a dismissal which may be unfair. If you believe your resignation is equal to dismissal, you may make a claim. However, it will be up to you to establish that you were dismissed and that the dismissal was unfair.