UNFAIR DISMISSAL

Regis Industrial Relations provides for represntation in unfair dismissal, unlawful termination cases in both the Fair Work Commission and the Western Australian Industrial Relations Commission.

Unfair Dismissal in the Fair Work Commission

What is an Unfair Dismissal
Section 385 of the Fair Work Act 2009 defines unfair dismissal as that a person has been dismissed, 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.

- harsh because of its impact on an employee or because it is disproportionate to the employee’s misconduct or poor performance

- unjust because of its impact on an employee or because it is disproportionate to the employee’s misconduct or poor performance

- unreasonable because of its impact on an employee or because it is disproportionate to the employee’s misconduct or poor performance

Serious Misconduct
There are various degrees of behaviour which fall under the general description of ‘misconduct’, ranging from employee behaviour justifying a first warning to behaviour justifying summary dismissal (dismissed on the spot). The common law has long recognised that where an employee is guilty of a serious act of misconduct the employer does not have to provide the employee with the period of notice of termination and may forfeit certain entitlements normally due on termination of employment.

Serious Misconduct Defined
Serious misconduct is defined by Regulation 1.07 under the Fair Work Regulations 2009 to mean: 

- wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment

- conduct that causes serious and imminent risk to the health and safety of a person, or the reputation, viability or profitability of the employer’s business;

- theft; fraud; assault; the employee being intoxicated (alcohol or drugs, other than prescribed medication) at work

- the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employees contract of employment.

Who can make a Claim for Unfair Dismissal in the Fair Work Commission.
Under the provisions of the Fair Work Act 2009 to make a claim for unfair dismissal in the Fair Work Commission you must be;

- an employee

- be employed by a federally constituted corporation (i.e. a Company normally a Pty Ltd, Ltd or Inc)

- your employer has more than 15 employees, and you have worked for your employer for at least a period of 6 months or  your employer had fewer than 15 employees, (defined as a Small Business employer) and you worked for your employer for at least 12 months.

- you earned less than $129,300 a year or you earning more than $129,300 a year but are covered by a modern award or an enterprise agreement

- you were not a casual employee employed on an irregular basis

Time Limit
An employee has 21 calendar days from the date of termination to commence an application in the Fair Work Commission for unfair dismissal. In certain circumstances this period may be increased by application for extension of time however it must be a genuine reason. We advise that you commence action as soon as possible so that your application is filed within the specified time frame . Do not rely on the extension of time principle as it is only determined in exceptional circumstances.

What is the Cost of Filing an Application in Fair Work Commission
The current filing fee for an application seeking a remedy for unfair dismissal is $65.50 An application can be filed to waive this filing fee if you are suffering financial hardship.

Unfair Dismissal in the Western Australian Industrial Relations Commission (WAIRC)

What is Unfair Dismissal
The Industrial Relations Act 1979 of Western Australia does not provide for a definition of unfair dismissal. The definition comes from case law. Unfair dismissal occurs when an employee is terminated in a harsh, oppressive or unfair manner.

- harsh because of its impact on an employee or because it is disproportionate to the employee’s misconduct or poor performance

- unfair because the employee was not guilty of the alleged misconduct or poor performance.

- unreasonable because there was no evidence to support or justify the termination of employment

Who Can Make A Claim
For an employee to make a claim in the Western Australian Industrial Relations Commission they must be;

- an employee

- be employed under a State system i.e. your employer is not a constitutional corporation.

- be covered by an Award or Industrial Agreement or if not covered by Award or Industrial Agreement be earning currently as of the 1 July 2013 less than $148,800

Time Limit
An employee has 28 calendar days from the date of termination to commence an application in the WAIRC for unfair dismissal. In certain circumstances this period may be increased by application for extension of time however it must be a genuine reason. We advise that you commence action as soon as possible so that your application is filed within the specified time frame.

What is the Cost of Commencing an Application for Unfair Dismissal
Currently the cost of filing an application for unfair dismissal in the WAIRC is $50.00 An application can be filed to waive this filing fee if you are suffering financial hardship.

Denied Contractual Benefits
W
here an employer was a trading or financial corporation, the WAIRC was prevented from dealing with or resolving a claim of denied contractual entitlements by  operation of the Fair Work Act 2009. Recently it was determined that the WAIRC is able to hear and determine a claim for by an employee that they have been denied by their employer a benefit under their contract of employment where the employer is a trading or financial corporation i.e. the employer is covered under the federal jurisdiction.

Contractual benefits can include outstanding bonuses, extra leave, unpaid overtime, redundancy payments and other entitlements. contractual entitlements is where a benefit which is due under their employment contract (not an Award) has not been allowed to an employee.

Time Limit for Filing an Application  for a Denied Contractual Benefit.
An employee has a six year limitation period in which to file an application for denied contractual benefits.

Cost for filing a Denied Contractual Benefit Claim.
The cost of filing a denied contractual benefits claim in the WAIRC is $50.00

If you have a query at all in regard to unfair dismissal or denied contractual benefits please do not hesitate in contacting us to make an appointment for an initial consultation to see where you stand. It is important that this be done immediately due to the time constraints imposed by the relevant jurisdictions; the federal or state systems.StatCounter - Free Web Tracker and Counter

Regis Industrial Relations is located in the Southern Suburbs of Perth Western Australia predominantly the Fremantle area however we cover all of the Perth Metropolitan area and the country regions of Western Australia. Regis Industrial Relations also accepts interstate clients. If you have a query or wish to make an appointment please refer to the contact details below.

           Contact Details             Telephone: (08) 93363565

                                               By email    admin@regis.net.au

                                                   

 

 

 

Disclaimer The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.