About Unfair Dismissal
Learn more about unfair dismissal in WA.
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- Our Process
- The Law
- Eligibility
FreePhone case assessment
Let’s talk about your situation confidentially. We will need to discuss your circumstances in detail to understand what has happened so far to tell you if we can help or not. Get the process started now, by requesting a free call back.
Appointment with our employment lawyers
If it's clear consulting a solicitor you will help your situation, we can identify the right one for your case and arrange a convenient appointment for you. We will review any documents you send us, and brief the solicitor before you arrive to maximise your time with them.
In depth consultation
At your meeting the solicitor will be able to indicate the outcome they expect to achieve and the legal pathway they would take with you to ensure the best possible outcome based off past cases and experience.
Sound legal advice & pathway forward
Armed with confidence in your lawyer, sound legal advice and a fixed fee quote for representation throughout the process you can then decide if you would like the team to act on your behalf to represent you through the process.
The sooner you act the better.
Leaving things to the last minute makes it more difficult for your legal team to obtain the best possible result.
Solicitors with unfair dismissal experience.
Meet with lawyers who have represented unfairly dismissed clients.
- Past Cases
- Good Results
- Happy Clients
Unfair Dismissal
Fair Work Act 2009 s 385
A person has been unfairly dismissed if the Fair Work Commission is satisfied that:
“The person has been dismissed and, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code, and the dismissal was not a case of genuine redundancy.”
Was the dismissal unjust, harsh or unreasonable?
If you are complaining about an unfair dismissal, you must prove that the dismissal was unjust, harsh or unreasonable. Bring your lawyer evidence showing:
- What your employer’s reason for dismissing you was and if it was valid.
- What you were employed to do.
- What your co-workers thought of you in your role at the company.
- If you were given warnings from management but disregarded them.
- If your performance in your role was satisfactory.
- The size of the place you worked at.
- If there have been prior complaints against the employer.
The sooner you act the better.
Leaving things to the last minute makes it more difficult for your legal team to obtain the best possible result.
Solicitors with unfair dismissal experience.
Meet with lawyers who have represented unfairly dismissed clients.
- Past Cases
- Good Results
- Happy Clients
To make an application for unfair dismissal remedy, you must be:
- First, you have to be covered by national unfair dismissal laws.
- Second, you have to show that you are eligible to make the unfair dismissal claim. This is important as certain types of employee are not covered by Fair Work Act unfair dismissal laws.
What does ‘dismissed’ mean?
Dismissed means that your employment has been terminated on your employer’s initiative. It can also mean that you were forced to resign because of the conduct or a course of conduct by your employer. Independent contractors and volunteers are not eligible for unfair dismissal applications under the Fair Work Act. It does not mean being demoted, without a significant reduction in your duties or remuneration, where you remain employed in the demoted position. It also does not mean the end of a fixed-term or fixed task contract.
What is taken into account?
Your salary – a high income earner may not be eligible to file a claim. If you earnt more than $138,900 from your employment before dismissal and were not covered by a modern award or enterprise agreement then you will not be eligible to file a claim.
How long you’ve worked for your employer - If your employer only had fewer than 15 employees then you must have worked for them for a period of at least 12 months at the time of dismissal in order to be eligible. If your employer had 15 or more employees then you must have worked for them for a period of at least 6 months at the time of the dismissal in order to be eligible.
Type of employee you are. - In Western Australia if you work for the state government’s public sector, non-constitutional corporations (e.g. businesses that are sole traders or partnerships), or the local governments that aren’t constitutional corporations, you will not be covered by the Fair Work Act and cannot lodge a claim of unfair dismissal with them. A casual employee who worked on an irregular basis cannot make an application for unfair dismissal with under the Fair Work Act.
The size of your former employer’s company - If there were greater or fewer than 15 employees in your former employer’s company will impact on how long you will have needed to work for them before your unfair dismissal claim.
Steps to take
- Lodge an application of unfair dismissal to the Fair Work Commission.
- The Fair Work Commission will send a copy of your application to your employer.
- The Fair Work Commission will send both you and your employer a written notice with the date and time of a conciliation conference.
- A conciliation is an informal, private and generally confidential process where a Commission conciliator will try to assist in resolving the unfair dismissal application. The conciliator is independent and will not take sides but instead tries to bring you and your employer to an agreed resolution.
- It is usually held by telephone and takes approximately 90 minutes.
- The conciliator will explain the process.
- If an agreement is reached then the conciliator can prepare a written agreement for you and the other party to sign.
- If an agreement is not reached the conciliator will explain the next steps in the process.
- If an agreement is not reached during the conciliation conference a formal hearing or conference will be set where the decision will be made by a Member of the Commission.
- At this stage a final decision as to your application will be made.
- It may happen over several hearings or conferences.
- If you cannot attend a hearing or conference date you must send the Fair Work Commission a request for an adjournment to change the date or time. This must be in writing and provide full reasons as to why you cannot attend. It should also be sent to the other party.
- The possible outcomes from a hearing or conference are:
- The dismissal is found to be fair and the unfair dismissal claim is dismissed.
- The dismissal is found to be unfair and the Commission orders that the employee be reinstated (sometimes with back-pay).
- The dismissal is found to be unfair but reinstatement is not appropriate, so the Commission orders payment of compensation.
- The dismissal is found to be unfair however there is no remedy appropriate due to other circumstances (such as other income or misconduct).
- The matter is dismissed because a jurisdictional objection or other objection is upheld.
The sooner you act the better.
Leaving things to the last minute makes it more difficult for your legal team to obtain the best possible result.
Solicitors with unfair dismissal experience.
Meet with lawyers who have represented unfairly dismissed clients.
- Past Cases
- Good Results
- Happy Clients
Our Process
FreePhone case assessment
Let’s talk about your situation confidentially. We will need to discuss your circumstances in detail to understand what has happened so far to tell you if we can help or not. Get the process started now, by requesting a free call back.
Appointment with our employment lawyers
If it's clear consulting a solicitor you will help your situation, we can identify the right one for your case and arrange a convenient appointment for you. We will review any documents you send us, and brief the solicitor before you arrive to maximise your time with them.
In depth consultation
At your meeting the solicitor will be able to indicate the outcome they expect to achieve and the legal pathway they would take with you to ensure the best possible outcome based off past cases and experience.
Sound legal advice & pathway forward
Armed with confidence in your lawyer, sound legal advice and a fixed fee quote for representation throughout the process you can then decide if you would like the team to act on your behalf to represent you through the process.
The sooner you act the better.
Leaving things to the last minute makes it more difficult for your legal team to obtain the best possible result.
Solicitors with unfair dismissal experience.
Meet with lawyers who have represented unfairly dismissed clients.
- Past Cases
- Good Results
- Happy Clients
The Law
Unfair Dismissal
Fair Work Act 2009 s 385
A person has been unfairly dismissed if the Fair Work Commission is satisfied that:
“The person has been dismissed and, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code, and the dismissal was not a case of genuine redundancy.”
Was the dismissal unjust, harsh or unreasonable?
If you are complaining about an unfair dismissal, you must prove that the dismissal was unjust, harsh or unreasonable. Bring your lawyer evidence showing:
- What your employer’s reason for dismissing you was and if it was valid.
- What you were employed to do.
- What your co-workers thought of you in your role at the company.
- If you were given warnings from management but disregarded them.
- If your performance in your role was satisfactory.
- The size of the place you worked at.
- If there have been prior complaints against the employer.
The sooner you act the better.
Leaving things to the last minute makes it more difficult for your legal team to obtain the best possible result.
Solicitors with unfair dismissal experience.
Meet with lawyers who have represented unfairly dismissed clients.
- Past Cases
- Good Results
- Happy Clients
Eligibility
To make an application for unfair dismissal remedy, you must be:
- First, you have to be covered by national unfair dismissal laws.
- Second, you have to show that you are eligible to make the unfair dismissal claim. This is important as certain types of employee are not covered by Fair Work Act unfair dismissal laws.
What does ‘dismissed’ mean?
Dismissed means that your employment has been terminated on your employer’s initiative. It can also mean that you were forced to resign because of the conduct or a course of conduct by your employer. Independent contractors and volunteers are not eligible for unfair dismissal applications under the Fair Work Act. It does not mean being demoted, without a significant reduction in your duties or remuneration, where you remain employed in the demoted position. It also does not mean the end of a fixed-term or fixed task contract.
What is taken into account?
Your salary – a high income earner may not be eligible to file a claim. If you earnt more than $138,900 from your employment before dismissal and were not covered by a modern award or enterprise agreement then you will not be eligible to file a claim.
How long you’ve worked for your employer - If your employer only had fewer than 15 employees then you must have worked for them for a period of at least 12 months at the time of dismissal in order to be eligible. If your employer had 15 or more employees then you must have worked for them for a period of at least 6 months at the time of the dismissal in order to be eligible.
Type of employee you are. - In Western Australia if you work for the state government’s public sector, non-constitutional corporations (e.g. businesses that are sole traders or partnerships), or the local governments that aren’t constitutional corporations, you will not be covered by the Fair Work Act and cannot lodge a claim of unfair dismissal with them. A casual employee who worked on an irregular basis cannot make an application for unfair dismissal with under the Fair Work Act.
The size of your former employer’s company - If there were greater or fewer than 15 employees in your former employer’s company will impact on how long you will have needed to work for them before your unfair dismissal claim.
Steps to take
- Lodge an application of unfair dismissal to the Fair Work Commission.
- The Fair Work Commission will send a copy of your application to your employer.
- The Fair Work Commission will send both you and your employer a written notice with the date and time of a conciliation conference.
- A conciliation is an informal, private and generally confidential process where a Commission conciliator will try to assist in resolving the unfair dismissal application. The conciliator is independent and will not take sides but instead tries to bring you and your employer to an agreed resolution.
- It is usually held by telephone and takes approximately 90 minutes.
- The conciliator will explain the process.
- If an agreement is reached then the conciliator can prepare a written agreement for you and the other party to sign.
- If an agreement is not reached the conciliator will explain the next steps in the process.
- If an agreement is not reached during the conciliation conference a formal hearing or conference will be set where the decision will be made by a Member of the Commission.
- At this stage a final decision as to your application will be made.
- It may happen over several hearings or conferences.
- If you cannot attend a hearing or conference date you must send the Fair Work Commission a request for an adjournment to change the date or time. This must be in writing and provide full reasons as to why you cannot attend. It should also be sent to the other party.
- The possible outcomes from a hearing or conference are:
- The dismissal is found to be fair and the unfair dismissal claim is dismissed.
- The dismissal is found to be unfair and the Commission orders that the employee be reinstated (sometimes with back-pay).
- The dismissal is found to be unfair but reinstatement is not appropriate, so the Commission orders payment of compensation.
- The dismissal is found to be unfair however there is no remedy appropriate due to other circumstances (such as other income or misconduct).
- The matter is dismissed because a jurisdictional objection or other objection is upheld.
The sooner you act the better.
Leaving things to the last minute makes it more difficult for your legal team to obtain the best possible result.
Solicitors with unfair dismissal experience.
Meet with lawyers who have represented unfairly dismissed clients.
- Past Cases
- Good Results
- Happy Clients
