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.