Unfair dismissal laws provide protection to Australian employees from having their jobs terminated in circumstances that are “harsh, unjust or unreasonable”. MKI Legal are experienced unfair dismissal lawyers in Perth. Our team has advised on thousands of claims.
Time limits to file a claim
For most Western Australian employees, there is a strict 21 day time limit, from the date that the dismissal took effect, to lodge a claim. If a claim is filed out-of-time, it is difficult to get an extension.
In Western Australia, an employee who has been terminated in unfair circumstances can either make a claim for an unfair dismissal remedy at the Fair Work Commission (‘FWC’) or the Western Australian Industrial Relations Commission (‘WAIRC’).
If an employee is covered by the national workplace system, such as being employed by a constitutional corporation (a Pty Ltd or Ltd company), they must file a claim with the FWC within 21 days from when the termination took effect.
If an employee is not covered by the national workplace system, for example, their workplace is run by a partnership or sole trader, a claim must be filed with the WAIRC within 28 days from the date that the termination took effect.
The above time limits are strictly enforced. However, they can be extended provided there are special circumstances.
Minimum period of employment requirements
An employee must be employed for a minimum period before being eligible to lodge an unfair dismissal claim. Under the national workplace system (that is claims lodged at the FWC):
- if an employee works for a small business, the minimum period of employment is 12 months;
- in all other cases (that is the employee works for an employer with more than 15 employees), that period is shortened to 6 months.
A small business means an entity that “employs fewer than 15 people”. This is generally determined on a “headcount” basis, so that all employees (whether full-time or part-time) are counted. Casuals are also counted if they engaged on a regular and systematic basis. People who work for an “associated entity” of the business are also counted.
Under the Western Australian state system, there is no minimum period of employment that has to be served before an unfair dismissal claim can be lodged.
If you think you have been unfairly dismissed, contact us
To lodge a claim at FWC (e.g. the national system), an employee must either:
- earn less than $142,000 (as of 1 July 2017); or
- be covered by a modern award or a pre-modern award instrument; or
- be covered by an enterprise agreement or an agreement-based transitional instrument.
To be able to make a claim in the WAIRC (the WA State system), an employee has to be earning less than the prescribed threshold, which is $ $159,300.00 (as of 1 July 2017).
An employee has to have been be dismissed to lodge an unfair dismissal claim.
An employee has been dismissed if:
- the employment has been terminated on the business’s initiative; or
- the employee resigned because the employee was forced to do so because of conduct engaged in by the business – in other words the employee had no choice but to resign. This is known as constructive dismissal.
An employee has not been dismissed if they were demoted, provided the demotion did not involve a significant reduction in their remuneration or duties, and they remain employed by the same employer. A dismissal may occur if the demotion involves a significant reduction in duties or remuneration.
An unfair dismissal remedy will not succeed at the FWC or the WAIRC, if the employee’s termination was due to a ‘genuine redundancy’.
The term ‘genuine redundancy’ is specific and must satisfy all of the following:
- the job is no longer required to be performed by anyone;
- the business complied with any obligation in a modern award or enterprise agreement to consult with the employee before their position was made redundant (which may also include consulting in writing); and
- it would not have been reasonable in all the circumstances for the employee to be redeployed within:
- the employer’s enterprise; or
- the enterprise of an associated entity of the employer.
A dismissal will not be a genuine redundancy if it would have been reasonable in all of the circumstances, at the time of the dismissal, for the employee to be redeployed within the business’ enterprise or that of an associated entity. The following are some of the factors that are taken into account for this purpose:
- the managerial integration between associated entities;
- the nature of any available position;
- the qualifications necessary to perform the available position;
- the employee’s skills, qualifications and experience;
- the location of the job in relation to the employee’s residence; and
- the remuneration which is offered.
A dismissal will also not be a genuine redundancy if:
- The employer was required to consult but did not do so; or
- The employer still needs that job to be done.
If an employee has been made redundant, and the business has not satisfied all of the above requirements of ‘genuine redundancy’, the employee may be able to lodge an unfair dismissal claim.
Contact us for a free discussion
If you have been dismissed, contact us for a free discussion about whether you can lodge an unfair dismissal claim.