Unfair dismissal in Western Australia

Start with the date, not the merits

Almost every unfair dismissal conversation begins in the wrong place. People want to explain what happened, and the strength of the story is usually real. But the tribunal cannot reach the story until the application is validly on foot, and the period for lodging it is short. In the national system it is 21 days from the day the dismissal took effect - not the day you were told, not the day the final pay landed, and not the day you finished working out notice, though those dates are often different and the difference matters. In the WA state system the period is 28 days from termination. Extensions exist in both, but they require the tribunal to be persuaded that the circumstances justify it, and simply not knowing about the time limit is rarely enough on its own. Treat the date your dismissal took effect as the start of a countdown and get advice inside it.

Which system covers you, and why it matters more in WA

Western Australia is the only state that never referred its private-sector industrial relations powers to the Commonwealth, so two systems operate here side by side. Employees of constitutional corporations - which includes most companies trading in WA - are in the national Fair Work system. Employees of unincorporated employers, typically sole traders, unincorporated partnerships and some unincorporated trusts, generally fall within the WA state system under the Industrial Relations Act 1979 (WA). The two systems have different tribunals, different time limits, different eligibility rules and different remedies. Nothing about the way a workplace looks tells you which one applies; what matters is the legal form of the entity that employed you, which appears on your payslip, your contract and the ABN or ACN it quotes. This is the single most common thing people get wrong about dismissal in Western Australia, and it is the one that costs the most, because a wasted week spent in the wrong forum comes out of a very short limit.

• Which employment system covers you in WA →

Are you protected from unfair dismissal?

In the national system, being dismissed is not by itself enough. You must have completed the minimum employment period, which is six months of continuous service, or twelve months where the employer is a small business employer with fewer than fifteen employees. You must also fall into one of three categories: a modern award covers your employment, an enterprise agreement applies to you, or your annual rate of earnings is less than the high income threshold. That threshold is indexed on 1 July each year, so the current figure should be checked rather than assumed, and what counts towards earnings is not simply the salary line on the contract. Service as a casual counts towards the minimum employment period only where the engagement was regular and systematic and there was a reasonable expectation of continuing employment - a question decided on the actual pattern of work rather than the label used in the contract.

Unfair dismissal and small businesses

A small business employer is one with fewer than fifteen employees, counted across the business and any associated entities and including regular and systematic casuals. Two consequences follow. First, the minimum employment period doubles: an employee needs twelve months of continuous service before they can bring an unfair dismissal claim at all, so dismissals inside the first year are usually not challengeable on this ground. Second, if the employer followed the Small Business Fair Dismissal Code, the dismissal is not unfair. The Code permits summary dismissal without notice where the employer believes on reasonable grounds that the conduct is serious enough to justify it, and otherwise requires a valid reason based on conduct or capacity, a warning that the employee is at risk of dismissal, and a real opportunity to respond and to improve. Employers who rely on the Code and cannot produce anything in writing usually struggle, because the Commission looks for evidence that the steps actually happened. Employees dismissed by a small business should not assume the Code closes the door: whether the headcount is really under fifteen, and whether the Code was genuinely complied with, are both contestable.

What makes a dismissal harsh, unjust or unreasonable

Where the claim is properly on foot, the Commission works through a defined list of considerations rather than a general sense of fairness. The main ones are whether there was a valid reason relating to the employee's capacity or conduct, whether the employee was notified of that reason, whether they were given an opportunity to respond, whether a support person was unreasonably refused, whether warnings were given where the dismissal related to unsatisfactory performance, and the effect of the employer's size and access to human resources expertise on the process followed. Two points surprise people on both sides. A dismissal can be unfair because of how it was done even where the underlying reason was sound; and a dismissal can survive an imperfect process where the reason was serious enough. Most cases turn on the process, which is why the documents created at the time matter more than the recollection of the meeting.

Redundancy is a separate question

A dismissal that is a genuine redundancy is not an unfair dismissal. But genuine has a specific meaning: the employer must no longer require the job to be performed by anyone because of changes in operational requirements, must have complied with any consultation obligation in an applicable award or enterprise agreement, and redeployment within the business or an associated entity must not have been reasonable. Redundancies fail that test regularly - the work continues under a new title, consultation was announced rather than conducted, or an obvious vacancy was never offered. If you have been made redundant and the same work is still being done, that is worth testing inside the same 21 days.

• Redundancy and redundancy pay in WA →

Forced resignation

Resigning does not always end the question. A resignation can still be a dismissal where the employee was forced to resign by conduct or a course of conduct engaged in by the employer, which covers ultimatums to resign or be terminated and, in some circumstances, a deliberate course of conduct that leaves no real alternative. These claims are harder than dismissal claims because the employee has to establish the compulsion, and contemporaneous records help enormously. The time limit runs from the resignation taking effect, which means people who resign under pressure and then take time to recover often lose the option before they consider it.

What actually happens after you lodge

In the national system, lodging Form F2 leads first to conciliation, usually conducted by telephone by a Commission conciliator, which is private, informal and without prejudice. A large majority of matters resolve at that stage, most often for a payment and a deed of release rather than a return to work. If it does not resolve, the matter proceeds to a conference or hearing before a Commission member, where evidence is given and findings are made. The WA state system runs its own conciliation and hearing process before the Western Australian Industrial Relations Commission. A filing fee applies to a national application and is indexed each year, with a waiver available on serious financial hardship.

What can be ordered: reinstatement and compensation

Reinstatement is the primary remedy in the national system. Compensation may be ordered only where the Commission is satisfied that reinstatement is inappropriate, which in practice it very often is once trust has broken down. Compensation is calculated by reference to what the employee would likely have earned had they not been dismissed, reduced for what they have earned since and for any misconduct, and reduced again where the dismissal was partly the employee's own doing. Two limits catch people out. There is no component for shock, distress, humiliation or hurt feelings - those are expressly excluded - and the total is capped at the lesser of six months of the employee's wages or half the high income threshold amount. Anyone who has been told they can expect a large payout for how the dismissal felt has been told something the legislation does not allow.

For employers

Most unfair dismissal claims that succeed are not about a bad decision; they are about a decision made in a way that cannot be defended afterwards. Before dismissing, an employer should be able to state the valid reason, show that the employee was told of it and given a real chance to respond, produce any earlier warnings where performance is involved, and confirm which system and which award apply. Where the business has fewer than fifteen employees, the Small Business Fair Dismissal Code is a genuine protection, but it protects the employer who followed it and kept a record, not the one who could have. If a claim has already been lodged, the response and the conciliation are both opportunities to contain the matter, and what is said at that stage shapes everything after it.

Unfair dismissal advice in Vietnamese

Dismissal is difficult to deal with in a second language, and the documents that decide it - the contract, the warning letter, the termination letter, the deed of release - are rarely written in plain terms. Vinh Nguyen speaks fluent Vietnamese and can explain which system covers you, how long you have and what the realistic outcomes are in Vietnamese, so the decision is made with the position understood rather than guessed at. Documents lodged with the Commission remain in English.

• Vietnamese-speaking legal help →

Process

1. 1

   We confirm the date the dismissal took effect and how much of the limitation period remains.

2. 2

   We identify which system covers you from the legal form of the employer, not the workplace.

3. 3

   We check eligibility - minimum employment period, award or agreement coverage, and earnings.

4. 4

   We assess the reason given, the process followed and any redundancy or Code argument the employer will run.

5. 5

   We lodge the application, or advise plainly where a claim should not be brought.

6. 6

   We prepare you for conciliation, including a realistic range rather than an optimistic one.

7. 7

   We review any deed of release before it is signed, because it usually ends every claim you have.

What to prepare

• Your contract of employment and any position description.
• Payslips, and any letter setting out your salary or rate.
• The termination letter, and any warning or performance documents.
• Emails or messages about the dismissal or the events leading to it.
• The date the dismissal took effect, and the date you were told.
• The employer's legal name, ABN or ACN as it appears on your payslip.
• Any settlement offer or deed of release you have been given.

Risks, deadlines and common mistakes

• Letting the 21-day or 28-day period run while gathering evidence that can be gathered later.
• Lodging in the wrong system, and discovering it after the other limit has expired.
• Assuming a small business dismissal cannot be challenged, without testing the headcount or the Code.
• Accepting a redundancy as genuine when the work continues in substance.
• Signing a deed of release for a first offer before knowing the realistic range.
• Expecting compensation for distress, which the legislation expressly excludes.