Unfair Dismissal in the WA State System

If you were dismissed by an employer in the WA state system (for example a sole trader, a partnership, a family trust, a WA council, a WA government body, or a charity that does not really trade), you can bring an unfair dismissal claim in the Western Australian Industrial Relations Commission (WAIRC) under s 29(1)(c) of the Industrial Relations Act 1979 (WA) (IR Act). You have 28 days from the day your employment ended to lodge it.

The WA claim is in some ways easier to bring than the federal one: there is no minimum period of employment, no small business exemption, and compensation can include hurt and humiliation as well as lost wages. This page explains who can claim, how the WAIRC decides whether a dismissal was unfair, and what you can get.

Not sure which system you are in? Start with Am I in the State or Federal System?. If your employer is a trading company, the federal rules apply instead: see our page on federal unfair dismissal.

Who Can Claim

Any employee of a WA state system employer who has been dismissed can refer an unfair dismissal claim. Compared with the federal system:

• There is no minimum period of employment. You can claim even if you were dismissed in your first week.
• There is no small business exemption and no Small Business Fair Dismissal Code.
• Casual, part-time, fixed-term and probationary employees can all claim, as long as there was a dismissal (see below).
• There is an income cap, but it only applies if no award or industrial agreement covers your job. In that case, the WAIRC cannot decide your claim if your contract salary is above the prescribed amount, which the WAIRC publishes as $212,800 from 1 July 2026 (IR Act s 29AA(3)). The amount changes each 1 July. If an award or industrial agreement covers your job, the cap does not apply, whatever you earn.

Two matters must be taken into account in deciding whether a dismissal was unfair (IR Act s 23A(2)):

• whether you were on an agreed probationary period and had been employed for less than 3 months; and
• whether you were employed in a private home to provide services to the employer or their family or household.

Neither of these stops you claiming. They are factors the WAIRC weighs.

Public sector employees dismissed through the disciplinary or substandard performance process in Part 5 of the Public Sector Management Act 1994 (WA) use a different referral, IR Act s 29(1)(i). Public sector dismissals for other reasons, such as on probation or for ill health, go under s 29(1)(c) like anyone else. See WA Public Sector Employees.

Contractors. Only employees can claim, but a contract that calls you a contractor does not settle it. See Am I in the State or Federal System? for the real-substance test in IR Act s 7A.

Was There a Dismissal?

The WAIRC can only consider your claim if you were actually dismissed. A dismissal means your employment was ended at your employer's initiative: something your employer did brought the employment to an end, when you would otherwise have stayed (Xu Hong Bin v Yan Li [2022] WAIRC 00808, a Full Bench decision).

Some common situations:

• Your fixed-term contract simply ran out. Usually not a dismissal. But if your employer ended a fixed-term contract early, that is a dismissal, and you may also be owed the rest of the term as a contractual claim (see Denied Contractual Benefits).
• You were told to resign or be sacked. An ultimatum like that is likely to be treated as a dismissal, because the employer initiated the end of the job.
• You resigned because of how you were treated. This can be a "constructive dismissal", but the bar is high. You must show that your employer's conduct left you no real choice but to resign, or made resignation the probable result. If you had other realistic options, such as making a formal complaint, it is unlikely to count. It is up to you to prove it.
• You resigned in the heat of the moment. Words said in anger or under pressure, and withdrawn within a reasonable time, may not be treated as a real resignation.
• You are a casual and the shifts dried up. Whether this is a dismissal depends on whether you had one ongoing employment relationship or a separate contract for each shift.

If you are thinking of resigning because of bullying or other mistreatment, get advice first. Resigning can make a strong claim much harder to run.

The 28-Day Deadline

The claim must be lodged within 28 days after the day your employment ended (IR Act s 29(2)(a)). These are calendar days, and the clock runs from the day your employment ended, not from the date of a letter or your final pay.

The limit is strict. The WAIRC can accept a late claim only if it considers it would be "unfair not to do so" (IR Act s 29(3)). Unless a late claim is accepted, the WAIRC has no power to deal with it at all. In deciding, the WAIRC looks at how late the claim is, the reasons for the delay, whether you did anything else to contest the dismissal, prejudice to the employer, the merits of the claim, and fairness compared with others in the same position. The Industrial Appeal Court endorsed this approach in Malik v Paul Albert [2004] WASCA 51. It is up to you to show why a late claim should be accepted, and a claim that could not succeed will not be accepted late.

Do not wait for documents from your employer before lodging. You can lodge with what you know and gather the rest later.

What the WAIRC Asks: Was the Dismissal Harsh, Oppressive or Unfair?

The test in WA is different from the federal one. The WAIRC asks whether your employer's legal right to dismiss you was exercised so harshly, oppressively or unfairly that it amounted to an abuse of that right. It weighs all the circumstances together in one overall judgement.

Some things follow from that:

• There is no checklist. The federal system has eight statutory criteria. WA has none beyond the two s 23A(2) matters above. The Industrial Appeal Court has confirmed the WA test is decided by the established case law, not by a loose idea of a "fair go all round": Fagan v Minister for Corrective Services [2024] WASCA 167 (also published as [2025] WAIRC 00014).
• There is no separate "valid reason" requirement. The Full Bench has held that the federal valid reason test is not part of WA law: Maher v Roman Catholic Bishop of Bunbury [2024] WAIRC 00089.
• A dismissal can be lawful and still unfair. Your employer may have been entitled to end the contract, but the way it was done, or the circumstances, may still make the dismissal unfair.
• Unfair process is one factor, not automatically decisive. Being denied a chance to respond counts against the employer, but it does not on its own make a dismissal unfair; the question is still whether the right to dismiss was abused: Abuy v Town of Port Hedland [2026] WAIRC 00261 (Full Bench). Equally, a dismissal for a good reason can be unfair if it was carried out in a harsh or humiliating way.
• The circumstances at the time matter. The WAIRC looks at the facts as they were when you were dismissed. Things that happened afterwards are generally irrelevant, although facts that existed at the time but came to light later can be relied on by the employer.

How these principles apply to the reason your employer gave (misconduct, poor performance, redundancy, illness, probation and so on) is explained on What Makes a WA Dismissal Unfair?

Misconduct and Summary Dismissal

If you were dismissed for misconduct, it matters what your employer has to prove, and WA law is not settled on this.

• The Full Bench in Trestrail v City of Karratha [2025] WAIRC 00820 held that for unfair dismissal, the employer does not have to prove the misconduct actually happened. It must show that after a proper investigation, and after giving you a real chance to respond, it honestly believed on reasonable grounds that you did it, and that dismissal was justified.
• The Industrial Appeal Court in Garbett v Midland Brick Co Pty Ltd [2003] WASCA 36 said the employer has a burden to show the incident did occur. That has not been overruled.

In practice, the quality of your employer's investigation matters on either view. And if you were dismissed without notice, a separate contractual claim for your notice pay requires the employer to prove the misconduct actually happened (see Denied Contractual Benefits).

What You Can Get

If the WAIRC finds the dismissal was unfair, its powers are set out in IR Act s 23A, and it works through them in order.

1. Reinstatement in your old job, on terms at least as favourable as before. This is the primary remedy. If your employer says reinstatement is impracticable, it has to show why (Public Transport Authority of Western Australia v Australian Rail, Tram and Bus Industry Union [2016] WAIRC 00236, Full Bench). "Impracticable" means more than inconvenient or difficult.
2. Re-employment in another suitable position the employer has available, if reinstatement is impracticable.
3. With either of those, orders to maintain your continuity of employment and to pay the wages you lost because of the dismissal.
4. Compensation, but only if reinstatement and re-employment are both impracticable. Compensation is for "loss or injury caused by the dismissal" and cannot be more than 6 months' remuneration (IR Act s 23A(6), (8)).

Loss is usually lost income from the dismissal to the hearing, and sometimes beyond, allowing for anything you earned elsewhere and for the chance the job would have ended anyway. You are expected to look for other work, and the WAIRC takes your efforts to find work into account (s 23A(7)). Keep a record of every job application.

Injury is where WA differs most from the federal system, which does not compensate for distress at all. In WA, injury can include humiliation, hurt feelings, loss of reputation and shock caused by the way you were dismissed. It must be supported by evidence and go beyond the upset that comes with any dismissal. In Murphy as Trustee for the Wilson Trust v Shields [2026] WAIRC 00793 the Full Bench upheld an award of $3,000 for anxiety and distress that required medical treatment. Another 2026 decision awarded $5,000 for injury (Larney v Danao [2026] WAIRC 00078). Every case turns on its own evidence, and loss and injury together cannot exceed the 6-month cap.

Legal costs. The WAIRC cannot order either side to pay the other's legal fees at first instance, and other costs are awarded only in extreme or special circumstances (IR Act s 27(1)(c)). This means you are unlikely to face a costs order if you lose, but you will usually bear your own legal costs if you win.

How the Process Works

1. Lodge Form 2 with the WAIRC within 28 days. The filing fee is $50, which can be waived for significant financial hardship. If you are also owed contract money, lodge a Form 3 contractual benefits claim at the same time.
2. The employer responds, usually within 21 days of being served.
3. Conciliation. The WAIRC must try to resolve the matter by conciliation first (IR Act s 32). Most claims are listed for a conciliation conference before a Commissioner, and many settle there.
4. Hearing. If the claim does not settle, a Commissioner hears the evidence and decides. The WAIRC is not bound by the rules of evidence and must act according to equity, good conscience and the substantial merits of the case (IR Act s 26(1)).
5. Appeal. Either side can appeal to the Full Bench within 21 days (IR Act s 49). See Where Your Claim Goes.

Lawyers can appear for you as of right in an unfair dismissal claim (IR Act s 31(1)(c)). Since 1 September 2026, anyone paid to represent you who is not a lawyer must be a registered industrial agent (IR Act s 97J).

If your employer does not comply with a reinstatement or compensation order, you can apply to the Industrial Magistrates Court to enforce it, with no filing fee. If the court revokes a reinstatement order, it must order the employer to pay between 6 and 12 months' remuneration (IR Act s 83B).

Other Claims to Consider

An unfair dismissal claim is often not the only one available. Consider:

• Unpaid notice, a fixed-term balance or other contract money: a denied contractual benefits claim, which has no 6-month cap.
• Unpaid wages, leave or long service leave under an award or the minimum conditions: a claim in the Industrial Magistrates Court within 6 years. See Underpayments and Enforcement.
• Dismissal for a prohibited reason: a federal unlawful termination claim within 21 days. See Federal Laws That Still Apply.
• Dismissal because you asked about or complained about your pay or conditions: a damaging action claim with a reverse onus and no cap. You cannot get relief for the same dismissal under both, so you need to choose. See Damaging Action and Other Protections.
• Dismissal while on workers' compensation: within 12 months of first being unable to work because of a work injury, your employer cannot dismiss you solely or mainly because of your incapacity, and must give 28 days' notice in the approved form before dismissing you for any reason (Workers Compensation and Injury Management Act 2023 (WA) s 168).

WA and Federal Unfair Dismissal Compared

	WA state system	Federal system
Time limit	28 days (IR Act s 29(2)(a))	21 days
Late claims	Accepted if unfair not to	Only in exceptional circumstances
Minimum employment period	None	6 months, or 12 months for a small business
Small business exemption	None	Small Business Fair Dismissal Code
Income bar	Only if award-free and over $212,800 (from 1 July 2026)	High income threshold unless award or agreement covered
Test	Harsh, oppressive or unfair: an abuse of the right to dismiss	Harsh, unjust or unreasonable, with eight criteria
Genuine redundancy	Relevant, but not an automatic defence	Excludes the claim
Compensation cap	6 months' remuneration	Lesser of 26 weeks' pay and half the high income threshold
Hurt and humiliation	Can be compensated	Cannot be compensated

What to Do Now

• Write down the exact date your employment ended and count 28 days. If a federal reason may be involved, count 21.
• Find your employer's legal name from a payslip or contract and check it on ABN Lookup.
• Keep your termination letter, contract, payslips, rosters, texts and emails.
• Write a timeline of what happened while it is fresh, including who said what at any meetings.
• Keep records of every job you apply for.
• If the dismissal affected your health, see your GP and keep the records.
• Do not lodge anything with the Fair Work Commission until you know which system you are in.

For Employers

A state system employee can claim from their first day, and the WAIRC's single question is whether you abused your right to dismiss. What protects you is a fair process: tell the employee plainly what the concern is before you decide, give them a real chance to respond, consider what they say, warn them if their job is at risk, and dismiss in a respectful way. If you are relying on misconduct, investigate properly and keep records. If you are considering a dismissal, get advice before you act rather than after a claim arrives.

How MKI Legal Can Help

We act for employees and employers in WAIRC unfair dismissal claims, from checking whether you are in the state system to conciliation and hearings. We can tell you quickly whether you have a claim, which other claims should be lodged with it, and how to protect your position within the 28 days. Contact us for a free, no-obligation and confidential discussion about your circumstances.