HAVE YOU BEEN SACKED?
Unfair Dismissal Claims can only be made by employees who have been sacked by
their employer.
Unfair Dismissal Claims may also be bought by:
- Employees who have been made redundant; and
- Employees who have been forced to resign.
If you resigned from your employment it is unlikely you will have a case.
This is because the Industrial Commission has no power to hear a case where an
employer can show that an employee resigned freely.
It is not uncommon for there to be a dispute about whether an employee was
dismissed or resigned. If your employer puts you in a position where you had no
option but to resign, you may have a case. In this situation you may be able to
argue that there has been a “constructive dismissal”.
The law on constructive dismissal cases is a very complex. If you are unsure,
we recommend you get some advice from a lawyer.
WHAT IS AN UNFAIR DISMISSAL?
In an unfair dismissal case, you have to show that the dismissal was harsh,
unjust or unreasonable.
In determining whether your dismissal was harsh, unjust or unreasonable, the
Commission will make an assessment of the facts of your case and determine
whether in all the circumstances the dismissal was unfair.
A dismissal may be considered to be unfair for a wide variety of reasons
including the following:
- the employer was unhappy with your work but did not tell you, or give you
a proper opportunity to improve
- your employer believed you had acted improperly, but dismissed you without
giving you any or a proper opportunity to respond to allegations of
incompetence or misconduct
- the employer dismissed you because of a personality clash, or was
“playing favourites” with another employee
- you did something wrong, but the employer over reacted and dismissed you
when a reprimand or warning would have been a sufficient punishment
- your employer treated you so badly and/or was so intimidating and
unreasonable you felt forced to resign (“constructive dismissal”)
- you were told that your position was made redundant, but that was not true
and someone else was employed to do your work.
- you were made redundant, but there was an unfair selection process and/or
no consultation
- you were not paid a fair retrenchment payment when made redundant
WERE YOU AN EMPLOYEE?
To be entitled to make an unfair dismissal claim, you must be able show that
you were an employee. Sounds simple, but if you cannot show that you were an
employee before you were sacked, you will not be able to make an unfair
dismissal claim.
Independent Contractors
Independent contractors and subcontractors are unable make unfair dismissal
claims. This is because legally, independent contractors and subcontractors are
not regarded as employees.
Sometimes however, employers will call their workers contractors and workers
will themselves believe they are contractors, when they are really employees. Be
sure of your rights before you give up your chance to make an unfair dismissal
claim.
The law on independent contractors and subcontractors is complicated and it
is not possible to deal with the issues in this Outline. There is no simple test
to determine the matter. The Commission will take into account a number of
factors in order to decide whether you were really an employee who was subject
to the employer’s right to control and direct your work, or whether you were
really a contractor who independently supplied services and who should be
treated as a “self-employed” person.
- The Commission will consider matters such as:
- whether you had a written contract, and if so whether you were described
as a contractor
- whether PAYE tax was deducted from what you were paid
- whether you supplied labour only, or also plant, equipment and materials
- whether your start and finish times were directed by the employer, or were
in your control
- whether you were covered by the alleged employer for workers compensation
or whether you purchased your own sickness and accident insurance
- whether you could substitute someone else to do your work if you were ill
or unavailable, or whether you had to get permission
- whether you were paid for holidays or when you were unable to work due to
illness.
There are many other matters which may be taken into account. The above is a
list of a few only. Every case is different. Make sure you are certain about
whether or not you were an employee before you were dismissed. If you are at all
unsure, seek advice from a lawyer or union.
ARE YOU EXCLUDED FROM BRINGING A CLAIM
Excluded Employees
Certain classes of employees are unable to bring an unfair dismissal claim.
- Casual employees, unless they meet certain conditions
- Employees engaged under contracts for specified periods of time or for
specified tasks subject to certain exceptions.
- Employees serving limited periods of probation determined in advance
- Non-award employees who earn more than a specified amount by way of
remuneration.
- Employees working under conditions of employment that make specific
arrangements concerning unfair dismissal.
Regulation 10 of the Industrial and Employee Relations (General) Regulations
and Section 105A of the Industrial and Employee Relations Act 1994 (the State
Act) sets out the circumstances in which persons in the following categories are
excluded from access to the State Commission.
- casual employees
- persons employed for specified periods of time or for specified tasks
- probationary employees
- employees who have other remedies available to them.
- Other categories who are excluded from bringing a claim in the State
Commission are:
- non-award employees whose remuneration immediately before dismissal was in
excess of a salary of $66,200 indexed (at present, this figure excludes
non-salary components such as superannuation in the State Commission but
includes them in the Federal Commission)
- employees who have made a claim based on alleged unfair dismissal under
another law (eg Federal unfair dismissal laws, Federal or State
Discrimination laws or a common law claim.
Similar exclusions apply in the Federal Commission, although they are not
exactly the same.
Note: The Federal and State Acts and regulations are constantly changing.
At present there are proposals before State Parliament which would reduce
eligible non-award employees to those earning no more than $66,200 as a total
package including superannuation and motor vehicle costs.
WHAT CAN YOU DO?
Under South Australian Law any non-excluded employee except a Commonwealth
employee can apply to the South Australian Industrial Relations Commission which
is the tribunal which hears claims for Unfair Dismissal.
Commonwealth employees and employees who are employed under Federal awards or
certified agreements can apply to the Federal Commission
Employees under Federal awards or certified agreements commonly bring claims
in the State Commission. Employers sometimes object that such claims should only
be heard by the Federal Commission but there has been no final decision denying
such employees a choice of either Commission (this can be important if you are
paid more than a total salary package of $66,200 but less than a salary of
$66,200 -–you can only proceed in the State Commission in such circumstances)
If you also have a claim for underpayment or non-payment of wages, annual or
long service leave entitlement or any benefit due to you under your contract of
employment, then you must pursue your claim in the State Industrial Relations
Court or the Federal Court which are different tribunals from the State and the
Federal Commissions.
You can find out more about Industrial Court and Federal Court claims in the
separate topic relating to claims for wages and leave.
Note: The maximum salary figure of $66,200 increases each year – in
accordance with CPI increases – the indexed figure may be different under the
Federal law as opposed to the State law – if your income is less than $70,000,
you should get advice before assuming you are excluded.
DO YOU HAVE A CASE?
There can be no guarantees as to the success or failure of an individual
case.
The Commission will make its assessment by weighing up all the facts that are
presented to it. The Commission will look at ALL the circumstances of the case
to see that there has been “industrial fair play” or “a fair go all
round”. Here is a list of things which may provide you with some guidance as
to the likely success of a claim:
- what was your relationship like with other employees, customers and your
employer?
- what was the nature and quality of your work?
- was your work performance up to scratch?
- had you received proper training and supervision to do your job?
- were you given any warnings or reprimands?
- were you given a chance to respond to any allegations about your
performance or other matters?
- were you given reasons for your dismissal?
- did your employer conduct a proper investigation into allegations of
misconduct?
- were you given notice of termination, or pay in lieu of notice
- were you consulted about your redundancy?
SHOULD YOU PROCEED IN THE FEDERAL COMMISSION OR THE STATE COMMISSION?
As the State law is presently applied, you can choose to proceed in either
the State and Federal Commission. Although there are differences in law and
procedure, the manner in which your claim is dealt with, and the outcome, is
likely to be much the same. Points of difference to note are:
- in the Federal Commission there is a filing fee, in the State Commission
there is not.
- non-award employees earnings total remuneration of above $64,000 per annum
(indexed) are excluded from the Federal Commission; the limit in the State
Commission is a base salary of $66,200 per annum (indexed) – thus more
people would be excluded from the Federal Commission.
- the Federal statute (the Workplace Relations Act 1996) is more difficult
than the State law to read and understand, and the Federal procedures are
more complex and technical
- the State law prohibiting more than one set of proceedings based on an
unfair dismissal applies more strictly than the Federal law if you choose
the wrong option at the start.
SHOULD YOU PROCEED IN ANOTHER TRIBUNAL ALTOGETHER?
If you believe your dismissal was unfair because it was based on unlawful
discrimination, you may have a claim under any or each of:
- the Equal Opportunity Act (SA) 1984
- one of the Federal Acts prohibiting discrimination on grounds of race, sex
or disability
- a Federal Court claim under the Workplace Relations Act.
YOU MUST MAKE THE RIGHT CHOICE AT THE START. SEEK LEGAL ADVICE BEFORE ISSUING
PROCEEDINGS OR LODGING A COMPLAINT
WHAT YOU MIGHT BE ENTITLED TO RECOVER
If the State Commission finds that you have been unfairly dismissed, you may
be awarded one of the following:
- re-employment in your former job or in some other available position with
reimbursement of lost salary/wages;
- compensation to a maximum of six months remuneration or $33,100 (indexed)
whichever is the greater; or
- a combination of both.
In the Federal Commission, you may be awarded similar remedies. With respect
to compensation, the Federal Commission is limited to:
- for award employees – the total remuneration which would have been
received over 6 months.
- non-award employees - $32,000 (indexed).
The Commission will not order re-employment in circumstances where it
considers that it is impracticable or inappropriate to do so.
For more information on this topic refer below to Step 6 “The
Commission’s Decision” under the heading “Remedies – Re-employment or
Compensation”.
WHO CAN REPRESENT YOU?
It is up to you who conducts your case. You may choose to be represented by:
- a lawyer;
- a union representative;
- a registered agent in the State Commission; or
- yourself
We recommend you be represented by a lawyer or union.