What Makes a WA Dismissal Unfair?

In the WA state system there is no checklist for unfair dismissal. The Western Australian Industrial Relations Commission (WAIRC) asks one question: did your employer use its right to dismiss you so harshly, oppressively or unfairly that it was an abuse of that right? The answer depends heavily on the reason your employer gave, and on how it went about the dismissal.

This page takes the most common reasons one by one and explains what the WAIRC's decisions say tends to help or hurt a claim. It assumes you are in the WA state system and were dismissed within the last 28 days. If you are not sure of either, read Unfair Dismissal in the WA State System first.

How the WAIRC Approaches It

A few principles run through every kind of case:

• One overall judgement. The WAIRC weighs everything together. A weak reason given alongside a stronger one does not simply drop out; it can undermine the employer's credibility.
• No federal checklist. There is no "valid reason" element in WA law (Maher v Roman Catholic Bishop of Bunbury [2024] WAIRC 00089, Full Bench). Arguments built around the federal s 387 criteria can miss the point.
• Process matters, but is not everything. A denial of procedural fairness counts against the employer but does not on its own decide the case (Abuy v Town of Port Hedland [2026] WAIRC 00261, Full Bench).
• The WAIRC does not run the business. It does not substitute its own view of how the employer should manage its workplace, and it does not expect a perfect process.
• You carry the overall burden of showing the dismissal was unfair.

Two things to keep separate: how strong your case is, and how much it might be worth. A strong case can still be worth little if you had worked there only a short time or found another job quickly.

Misconduct: A Single Incident

This covers dismissal for one incident, such as theft, dishonesty, violence, abuse, a serious safety breach or refusing an instruction.

What the employer has to show. WA law is divided. The Full Bench in Trestrail v City of Karratha [2025] WAIRC 00820 held that the employer does not have to prove the misconduct happened. It must show that it investigated as fully as was reasonable, gave you a real opportunity to answer, and honestly believed on reasonable grounds that you did it, and that the misconduct justified dismissal. A belief that there was merely a risk you did it is not enough. The Industrial Appeal Court in Garbett v Midland Brick Co Pty Ltd [2003] WASCA 36 spoke of a burden on the employer to show the incident did occur, and that has not been overruled. On either view, the quality of the investigation is usually what decides the case.

Summary dismissal (without notice) needs something serious: conduct showing a disregard of the essential terms of the job, or that destroys the working relationship. Isolated incidents usually will not be enough (Portilla v BHP Billiton Iron Ore Pty Ltd [2005] WAIRC 02604, Full Bench). Dishonesty that destroys trust ordinarily justifies summary dismissal unless it is trivial or stale (Minister for Health v Drake-Brockman [2012] WAIRC 00150, Full Bench).

Things that tend to help a claim:

• there was no real investigation, or the decision-maker simply accepted a complaint without testing it;
• a serious allegation rests on one person's word and they will not stand behind it;
• the employer did not follow its own procedure, and that made a practical difference;
• you were summarily dismissed for a single incident that was not serious;
• someone else did the same thing and was not dismissed;
• the employer had tolerated the same conduct before, or contributed to it;
• the breach was accidental rather than deliberate.

Things that tend to hurt a claim:

• the conduct is admitted, or captured on CCTV, in writing or in system logs;
• you were given the allegations in detail, a real chance to respond, and a warning that dismissal was possible;
• you were not honest when answering the allegations, which can itself justify dismissal;
• the job involved handling money, caring for vulnerable people, safety, or a position of public trust.

A History of Warnings and a Final Incident

Where the dismissal followed earlier warnings and a "last straw", the key documents are the warnings themselves. A fair warning that your job is at risk is generally required before a dismissal for conduct or performance (Abuy v Town of Port Hedland [2026] WAIRC 00261, Full Bench).

• It helps you if no warning ever said your job was at risk, if earlier issues were never raised with you at the time, if old matters that were dealt with and closed were revived without notice, or if the final incident was trivial.
• It hurts you if there were written warnings about the same conduct that said your job was at risk and the conduct was repeated, or if there is a clear pattern of not following reasonable rules.

Breaking a Policy or Refusing a Direction

Every employee must follow lawful and reasonable directions. A direction must not involve anything illegal, must fall within the scope of your job, and must be reasonable in the circumstances; it does not need to be the best option available. Refusing a lawful and reasonable direction will generally give the employer a reason to act, but the WAIRC still asks whether dismissal was harsh or oppressive in all the circumstances.

It helps you if the direction was unlawful or outside your role, had no real safety or operational basis, the policy was never explained to you or changed without notice, the breach was inadvertent, or another employee who did the same thing kept their job. It hurts you if the direction was a clear safety requirement within your role, it implemented a legal requirement or public health order, or your refusal meant you could not do the job at all. A sincere objection lessens the seriousness of refusing only if it was objectively reasonable.

COVID-19 vaccination directions. WA decisions have generally upheld dismissals for refusing vaccination directions. A first-instance decision that found one such dismissal unfair because of inconsistent treatment was overturned by the Full Bench in Minister for Corrective Services v Fagan [2023] WAIRC 00984, and the Industrial Appeal Court dismissed the employee's further appeal. In Maher, however, the Full Bench upheld an appeal because the process followed had not been properly considered, which shows that a lawful direction does not end the inquiry.

Conduct Outside Work or a Criminal Conviction

Conduct away from work, including social media posts, criminal charges or a conviction, can justify dismissal if it damages the employment relationship or the employer's interests, or is incompatible with your role. But a sound reason does not end the inquiry: the WAIRC still asks whether dismissal was excessive, whether you were treated fairly and whether a lesser outcome was available. Where you have been convicted, the WAIRC will not go behind the conviction.

It helps you if there is no real connection to your employer (you were not identifiable as an employee, no colleague or client was involved, there was no effect on the business), if you were dismissed on a charge before any outcome, or if you have long service and have shown insight. It hurts you if the role carries a higher standard of conduct, such as police, prison officers, teachers or other positions of public trust, or if you insist you did nothing wrong in a way that suggests a lack of insight.

Much of the case law in this area comes from public sector appeals, which run under different rules. It should be read with care for a private sector job.

Poor Performance

WA has no statutory warning requirement, but the same principles apply in practice: you should generally have been told your performance was not meeting the standard, told that your job was at risk, and given a fair opportunity to improve. The usual way to show a performance dismissal was unfair is evidence that you did improve to meet your employer's reasonable expectations.

It helps you if there was no warning at all, the standard you were measured against was never defined or kept moving, you had good reviews, a bonus or a pay rise in the same period, the outcome letter was written before the meeting, or the "performance" issue is really an unproven conduct allegation. It hurts you if there was a documented improvement plan with clear standards, support, a timeframe and an explicit warning, and objective measures you did not meet.

A claim that the decision was predetermined succeeds only if the employer's mind was completely closed, not merely leaning one way (Abuy, Full Bench).

Illness, Injury or Workers' Compensation

If you were dismissed because of illness or injury, or while on workers' compensation, check the workers' compensation rules first. Under the Workers Compensation and Injury Management Act 2023 (WA), for 12 months from the day you first had an incapacity for work from the injury:

• your employer must not dismiss you solely or mainly because you are totally or partially incapacitated (s 168(2)); and
• it must not dismiss you for any reason unless it has given you at least 28 days' notice of its intention, in the approved form (s 168(3)–(4)).

A dismissal that breaches those rules is strong evidence in an unfair dismissal claim.

Beyond that, WA decisions have not settled a detailed test for dismissals on medical grounds. Expect the WAIRC to look at what medical information the employer relied on, whether you saw it and had a real chance to respond, whether a suitable role was available, and whether dismissal was proportionate.

Dismissal because of a temporary absence for a prescribed kind of illness or injury, or because of a disability, can also be a federal unlawful termination claim with a 21-day limit. See Federal Laws That Still Apply.

Redundancy

This is where WA differs most from the federal system. There is no rule that a genuine redundancy defeats the claim. Whether your job was genuinely redundant is relevant, but the WAIRC still asks whether the dismissal was harsh, oppressive or unfair (Sealanes (1985) Pty Ltd v Foley [2006] WAIRC 04110, Full Bench).

A redundancy does not require the work to disappear. It can be a genuine decision that fewer people are needed, or that duties will be spread among others. Even so, a genuine redundancy can be unfair because of how it was done: no meaningful information or discussion, no look at alternatives, unfair selection, or inadequate notice. It is legitimate to ask whether another position was, or was about to become, available, and whether selection was fair and objective. You do not have to prove someone else should have been chosen instead.

The Minimum Conditions of Employment Act 1993 (WA) s 41 requires your employer, once it has decided to make you redundant, to tell you as soon as reasonably practicable and discuss the likely effects and ways of avoiding or reducing them. A failure to do that is a factor against the employer, though not automatically decisive. It does not apply to casuals or apprentices. You are also entitled to up to 8 hours' paid leave to attend job interviews (s 43).

There is no statutory redundancy pay in the WA state system; it comes only from an award, agreement or your contract. A redundancy claim that fails only on consultation is often worth less than people expect, because the job may have ended anyway.

Resignation and Forced Resignation

If your employer says you resigned or abandoned your job, the first question is whether you were dismissed at all. You need to show that your employer's conduct left you no real choice but to resign, or made resignation the probable result. Having other avenues open, such as a grievance or a complaint, usually counts heavily against you (Godwell v Wiliams [2025] WAIRC 00376).

What usually decides these cases is what happened in the few days around the resignation: the messages, the calls, who said what, whether you tried to take it back, and what the employer did next. Keep all of it. A resignation said in anger and withdrawn within a reasonable time may not stand.

No Reason Given, or a Changing Reason

Before deciding to dismiss you for conduct or performance, your employer should tell you the reason plainly and give you a fair chance to respond, including to suggest a lesser outcome. An employer that gave no reason has nothing to point to on that front. If a different reason first appears in the employer's response to your claim, that affects its credibility.

Your employer can rely on facts that existed when you were dismissed even if it only discovered them later, but not on things that happened afterwards (Minister for Corrective Services v Fagan [2023] WAIRC 00984, Full Bench).

Probation and Short Service

There is no minimum period of employment, so you can claim even if dismissed during probation. If you were on an agreed probationary period and had worked there for less than 3 months, the WAIRC must take that into account (IR Act s 23A(2)(a)), but it does not bar the claim.

Probation is an extension of the selection process, and an employer can more readily end employment during it. But it should still give you a genuine opportunity to show you are suitable, with feedback and warnings as needed, and must not act capriciously or arbitrarily (Subrayan v Lynwood Christian Church Inc [2026] WAIRC 00759).

It helps you if no probation was ever agreed, you had worked there for more than 3 months, you were given no feedback or chance to improve, or the stated concerns look like a pretext. Short service also limits what the claim is worth, because the loss period is usually short.

What a Fair Process Looks Like

Whatever the reason, the WAIRC looks at how the dismissal was carried out. A fair process usually involves:

• telling you plainly, before any decision, what the concern is;
• giving you a reasonable opportunity to respond, and genuinely considering what you say;
• telling you your job is at risk;
• dismissing you respectfully.

Being marched off site, locked out without warning or told by text message can make a dismissal unfair even where there was a good reason, and it can also be evidence of the humiliation that WA law allows you to be compensated for.

Being Treated Differently From Others

A dismissal can be unfair if a truly comparable employee did the same thing, without any mitigating difference, and was not dismissed, so that you would objectively feel aggrieved (Portilla, Full Bench). The comparison has to be like for like, based on what was known when you were dismissed, and supported by evidence about the other person (Minister for Corrective Services v Fagan [2023] WAIRC 00984, Full Bench). It is worth raising, but it is rarely enough on its own.

For Employers

The same factors apply in reverse. Before dismissing a state system employee, ask yourself: have I investigated properly and kept records? Have I put the concern to the employee in plain terms and considered their answer? Have I warned them their job is at risk? Is dismissal proportionate, taking into account their service and record and how I have treated others? For a redundancy, have I discussed it with them and looked genuinely for alternatives, as the MCE Act requires? For an injured worker, am I inside the 12-month period and have I given the 28-day notice? Getting advice before the decision is far cheaper than defending a claim afterwards.

How MKI Legal Can Help

The reason your employer gave, and how it went about the dismissal, shape both your prospects and what your claim is worth. We can review your termination letter, warnings and any investigation material, tell you where the strengths and weaknesses lie, and prepare your claim within the 28 days. Contact us for a free, no-obligation and confidential discussion about your circumstances.