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.
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.