Unfair dismissal occurs when an employee's dismissal from
employment is harsh, unjust or unreasonable. Those who are unfairly
dismissed may be eligible to receive compensation by making an
unfair dismissal claim. In a small number of cases they may get an
order for reinstatement to their former job.
In Western Australia, unfair dismissal claims can be made under
the Fair Work Act 2009 or through the Western Australian
Industrial Relations Commission depending on the type of
organisation the employee worked for. Common situations where a
dismissal may be deemed unfair include:
Redundancy that is not genuine (the employer hired someone else
in the same role)
The employer did not follow correct or fair procedures in
effecting the dismissal
The employee was terminated as a result of poor performances
but was never notified of any issues in the lead up to the
There was no valid reason for dismissal
The employee was not formally notified in writing for the
reason of dismissal
The employee was not given an opportunity to respond to the
reason for dismissal
Especially in tough economic times, employees are more
frequently dismissed on the grounds of redundancy. If the position
was genuinely made redundant, employees cannot make an unfair
dismissal claim. . Genuine redundancy means the job (with its
bundle of duties) was no longer required to be performed by any one
job holder because of operational or structural changes.
Under many awards and enterprise agreements, the employer also
has to make reasonable efforts to redeploy you within the business
or a related business, and they may also have other steps to comply
with during the redundancy process. The law surrounding redundancy
is complex, so it is best to seek legal advice if you are unsure
about the legality of a redundancy.
OTHER TYPES OF CLAIMS
Sometimes an employee may not be able to make an unfair
dismissal claim but are able to make another type of claim,
Breach of contract claim
Unlawful termination claim
General protections/adverse action claim
A claim based on contract depends on proof that some provision
of the contract, including implied terms, has been breached, such
as where the required notice has not been given. The other claims
generally look at whether the reason behind dismissal was unlawful
rather than unreasonable. Unlawful reasons for dismissal
Discrimination (race, colour, sex, age, sexual preference,
political opinion, marital status, disability, pregnancy, religion,
national extraction or social origin)
Absence from work because of maternity leave, parental leave,
illness or injury
Absence from work because of voluntary emergency service
Filing a complaint or participating in proceedings against an
employer for alleged breaking of regulations or laws
Trade union membership or non-membership
Having or exercising a workplace right, such as making a
complaint or inquiry in relation to their employment.
A constructive dismissal is when the employee is left with no
other choice but to resign due to the actions or conduct of their
Common situations where this could occur include:
Giving an employee an ultimatum by telling them that they must
either resign or be terminated
Failing to provide a safe or healthy working environment
Imposing unfair and detrimental measures on the employee
Making it very difficult or impossible for the employee to
fulfil their role
The employee has to be able to prove that the employer's
actions gave them no choice but to resign.
OUTCOMES OF UNFAIR DISMISSAL CLAIMS
Successful unfair dismissal claims result in either
reinstatement or compensation, but mostly the latter. The maximum
compensation payable is capped at six months of pay and will
generally only be awarded in very serious cases.
There are strict time limits for making an unfair dismissal
claim. An employee has 21 days from the date of dismissal to make a
claim under the national system and 28 days under the state system.
If you are an employee who was unfairly or unlawfully dismissed or
an employer facing a claim, you should get legal advice
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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