Unfair dismissal; are you eligible to apply?
The national fair work system entitles almost all of Australian employees to be protected from unfair dismissal. If your employer was a company or other incorporated body, it is likely that you are protected from unfair dismissal by the Fair Work Act 2009. The potential remedies for unfair dismissal include reinstatement if desired and compensation. If you were employed by a sole trader or local goverment in Western Australia, your claim can be pursued with the Western Australian Industrial Relations Commission. Some States have transferred their unfair dismissal powers to the Commonwealth.
Under the national fair work system provided for by the Fair Work Act 2009, there are five qualifying criteria, called jurisdictional elements by lawyers.
They are
- You must have been dismissed or constructively dismissed while an employee.
- You must have been employed by a “national system employer” which essentially means a company or other incorporated body (not a sole trader) which engages in trade and commerce or a federal government institution. Local governments and not for profit NGOs can fall into either system depending upon the extent of their commercial activities. Since 1 January 2023 all local governments in Western Australia have their industrial relations issues subject to the regulation by the Western Australian Industrial relations Commission.
- Your annual remuneration, technically called your “annual rate of earnings”, must be less than the “high income threshold”, a sum which increases on 1 July each year) OR an enterprise agreement or modern award applies to your employment; if the claim must be pursued in the Western Australian Industrial Relations Commssion the “prescribed amount” also rises each year from 1 July.
- You must have been employed for at least the minimum employment period period which is 12 months for employees of small business employers or 6 months for non-small business employers.
- You must make an application for an unfair dismissal remedy to the Fair Work Commission within 21 days of the dismissal (or such further time as may be granted in exceptional circumstances). The relevant time limit in the Western Australian Industrial Relations Commission is 28 days.
- Of course you should take professional legal advice as soon as you can after a dismissal because the above basic qualifications each have various layers of legal complexity.
Other qualifying criteria apply in the Western Australian system. As an example probation is important in the State system but not in the national fair work system, and the State system has a “prescribed amount” rather than a “high income threshold”. The time limits to apply are also different, although the potential remedies are much the same.
The general protections and dismissals
The Fair Work Act, which covers most but by no means all employees, contains workplace protections which are in addition to protection from unfair dismissal. These protections, known as the general protections, can often be used to support a claim for relief when an employee is dismissed but is not protected from unfair dismissal, for example because the employee’s annual rate of earnings exceeds the high income thershold or he or she has not eeen employed for at least the minimum employment period to qualify for protection from unfair dismsal. The dismissal of an employee who is dismissed in circumstances which constitute a breach of the general protections, for exampe because one of the reasons for dismissal is that the employee has or has exercised a workplace right, is referred to for convenience by lawyers as “unlawful dismissal” and such claims are very commonly pursued in the Fair Work Commission by employees who suffer adverse action or are dismissed but who may not be able to pursue an unfair dismissal case for example because he or she earns too much remuneration or has not been employed long enough.
If you feel that you are a victim of unfair, unlawful or wrongful dismissal then I can help. Or if you are an employer with a tricky dismissal issue, I can help. Unfair and unlawful dismissals in Perth and regional Western Australia are a common occurrence in today’s workplaces. Over the years I have provided honest and straight forward advice to both employees and employers covering all aspects of unlawful and unfair dismissal WA.
The common expression wrongful dismissal is not technically a legal description. It is a popular generic and non literal name for a termination of employment by an employer which is wrong and for which something can be done to seek a remedy for the wrong.
However, strictly speaking dismissals which can be the subject of legal proceedings are either unfair, in which event a remedy ( typically reinstatement and/or monetary compensation) can be sought in an industrial tribunal with appropriate jurisdiction, or unlawful, which means that legal action can lie for a dismissal which contravenes a law of the land, most commonly the general protections provisions of the Fair Work Act. Furthermore, the issue of whether an employer’s obligations in a termination of employment fall under the federal fair work system or the Western Australian industrial relations system, which has completely different rules, is often very complicated. Many parties have chosen the wrong jurisdiction and found themselves marooned by the tight time limits without recourse to a remedy.
An unlawful termination may arise from the employer failing to apply the obligations upon the employer provided for by a contract (for example, by failing to give appropriate notice) or in the sense that an illegal act is involved (for example, by dismissing an employee for a prohibited reason such as a temporary absence from work due to illness, or through discrimination on a prohibited ground such as gender, race or age).
Curiously, a dismissal may be perfectly fair by community standards, yet be unlawful whereas a dismissal may be unfair but perfectly lawful. Both of these are included the the common expression wrongful dismissal. Paradoxically, there may be a valid reason for a dismissal but it might still be held to be unfair.
It probably should not be this way, but the termination of employment by employers can be very perilous.
The Fair Work Act 2009 is the Commonwealth government’s employment law bible (so to speak). It contains most of the laws which govern the contemporary legal relationship between Australian employers and employees. It deals with modern awards and enterprise agreements, the collective industrial instruments which apply to most Australian employers and employees, and also contains the national unfair and unlawful dismissal laws.
A small number of Australian employers and employees are covered by the State industrial relations system, and in Western Australian this is provided by the Industrial Relations Act 1979. It covers State government agencies, sole traders and partnerships, and their employees.