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 available for:

• 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 the employee may be said to have been 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 what is called a “constructive dismissal” case.

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 you have been harshly, oppressively or unfairly dismissed from your employment.

Determining whether your dismissal was harsh, oppressive or unfair is not easy. It will depend on the facts of your case.

In determining whether your dismissal was harsh, oppressive or unfair, the Commission will make an assessment of the facts of your case and determine whether or not you have been given a “fair go all round”.

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

This issue is important if you have been working as an independent contractor or subcontractor. 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, when they are really employees. Be sure of your rights before you give up your chance to make an unfair dismissal claim.

You were not an employee if:

• you were working under a contract with a labour hire firm; and
• you were engaged as an independent contractor or subcontractor.

The law on independent contractors and subcontractors is complicated and it is not possible to deal with all of the issues in this Outline. 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.

Casual Employees

If you have been employed as a casual worker, you may have problems making an unfair dismissal claim.

If you had, before your dismissal, been working with your employer for at least 12 months, and you had been working regular hours on a regular basis, you may still be able to make a claim.

For an explanation of the law on the rights of casual employees to make an unfair dismissal claim, click here

WHAT CAN YOU DO?

Under Western Australian Law you can apply to the Western Australian Industrial Relations Commission which is the tribunal which hears claims for:

• Unfair Dismissal; and
• Denied Contractual Benefits.

If you have signed a Western Australian Workplace Agreement, it is unlikely you will be able to make an application to the Western Australian Industrial Relations Commission.

You will instead have to apply to the Industrial Magistrate’s Court.

DO YOU HAVE A CASE?

There can be no guarantees as to the success or failure in 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 if your employer has given you 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?
• were you given reasons for your dismissal?
• did your employer do proper investigations into allegations of misconduct?
• were you paid all your entitlements after you were dismissed?

Here are some case studies that may help you work out whether you have a case.

You need to be very careful when looking at decisions on particular facts or on other legislation or in other commissions or courts.

But it may help to provide you with a few examples of dismissals that are likely to be “harsh, oppressive or unfair”.

CASE STUDY 1

Joe was allowed to continue in his job as a labourer for three years. Doreen, Joe’s boss, had never told Joe that he was not performing well or that she was not satisfied with Joe’s work. One day, Doreen then told Joe that he was fired but did not give Joe any reasons for his dismissal.

CASE STUDY 2

Lisa worked as a waitress in a restaurant. When she started she was told by her boss, Frank, that she would be given a permanent job if she passed a trial. Frank didn’t say how long the trial would be. After three months Lisa discovered that she was not being paid properly and asked Frank about it. Frank said “if you don’t like it, then you can leave”. The next week, Frank told Lisa that it wasn’t working out and that she wouldn’t be getting any more shifts. Lisa did not get any more work

WHAT YOU MAY BE ENTITLED TO RECOVER

If the Commission finds that you have been unfairly dismissed, you may be awarded one of the following:

• re-instatement to your former job;
• compensation to a maximum of six months pay; or
• a combination of both.

The Commission will only order re-instatement in circumstances where it considers that it is reasonably practicable to do so.

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; or
• yourself.

We recommend you seek be represented by a lawyer or union.

FURTHER INFORMATION

This Information Outline is provided courtesy of Dwyer Durack Barristers & Solicitors who are experienced in this area of law. They are located at Dwyer Durack House, 40 St. Georges Terrace, Perth, WA 6000 or call them on (08) 9325-9277 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

Established in 1914, Dwyer Durack is one of Western Australia's most respected and progressive law firms. It is the leading legal firm in Western Australia for the provision of a comprehensive service in the private client areas of personal injuries, family law, employment law, criminal law, consumer law and wills and estates. The firm comprises 13 Partners and a total compliment of 120 personnel. Dwyer Durack is a member of the Australia-wide PeopleLaw group.