In the WA state industrial relations system employees cannot be dismissed if it would be harsh, unfair or oppressive. An employer must have a valid and fair reason for dismissal, such as:
- The capacity of the employee to do the job (see the section below).
- The conduct or behaviour the employee, including serious misconduct (see the section below).
- The operational requirements of the business (including redundancy).
An employee who believes that they have been unfairly dismissed can make an unfair dismissal claim to the Western Australian Industrial Relations Commission. More detail is in the Unfair dismissal section below.
When an employee is dismissed an employee, employers must:
- provide the required notice period;
- pay out any unpaid wages, annual leave and long service leave owing to the employee;
- provide a separation certificate (a written statement stating the period of employment and type of job or work performed), if the employee requests it; and
- provide paid leave of up to one day off work during each week of the notice period for job interviews. After one day off work with pay, the employer can ask the employee to provide proof of attendance at an interview in order to access further paid leave or a statutory declaration.
There are additional obligations on employers when employees are being made redundant.
Unlawful termination
There are provisions in the national Fair Work Act 2009 regarding grounds on which it is unlawful to terminate an employee which also apply to state system employers and employees. Details are on the Fair Work Commission website
The capacity of the employee to do the job
Show moreWhen an employee’s work performance is not meeting the required standard, employers should take steps to help the employee improve their performance should be taken. Best practice includes:
- providing the employee an opportunity to give their point of view and provide reasons for the underperformance
- checking that the employee understands the required work standards,
- providing additional training if needed
- considering work adjustments in response to issues raised by the employee, for example flexible or reduced hours to deal with personal or family commitments
- monitoring employee performance more closely and giving more frequent feedback
- allowing the employee a reasonable amount of time to improve, and
- clearly communicating the possible consequences of not reaching the required performance standard.
Employers should ensure that discussions about performance standards are documented.
Three written warnings are not required, but it is good practice for the employee to be warned that failure to reach the required work standard could result in dismissal.
Conduct of the employee / serious misconduct
Show moreSerious misconduct is different to poor work performance. Serious misconduct is behaviour that could damage the employer's business or is inconsistent with the employment contract. Examples of serious misconduct can include:
- causing a serious and imminent safety risk
- being under the influence of alcohol or drugs at work
- assaulting a workmate
- theft or fraud
- damaging the reputation or profitability of the business
- refusing to carry out a lawful and reasonable instruction
Not all misconduct is sufficiently serious to warrant summary dismissal without notice.
Best practice for providing an employee with procedural fairness in the case of a misconduct allegation includes:
- arranging a meeting with the employee after alleged misconduct has occurred, and advising the employee that they are able to have a support person present
- Presenting all of the facts and evidence to the employee surrounding the alleged misconduct (e.g. notes taken from interviews with other employees or clients who may have seen what took place)
- Providing the employee with an opportunity to respond to the allegations and explain their actions (this can either be at the meeting or at a later point in time in a written explanation)
- Documenting discussions and providing copies to the employee.
In cases where employee misconduct has been established, the employer will need to determine if the misconduct is serious enough to warrant immediate dismissal without notice (serious misconduct) or whether another outcome is more appropriate - for instance, a warning, a written reprimand or dismissal with notice.
If, the employer comes to the conclusion that the employee has in fact engaged in serious misconduct, the employer may then terminate the employee without giving them notice. This should be done in writing, and the employee should always be informed why they are being terminated.
In determining a claim of unfair dismissal, the Western Australian Industrial Relations Commission will examine the context of the alleged misconduct. Employers alleging serious misconduct will need to be able to demonstrate that summary dismissal was the only option available.
Unfair dismissal claims
Show moreIf an employee believes they have been unfairly dismissed, they can make a claim for unfair dismissal to the Western Australian Industrial Relations Commission (WAIRC).
An application must be made within 28 days from the date of dismissal. Late claims are accepted in some very limited circumstances.
The types of employees who can make an unfair dismissal claim are:
- Full time, part time, casual, contract and temporary employees
- Probationary employees, however the WAIRC will take into consideration if they were on probationary period and had been employed for less than three months.
If the employee was employed directly by a household employer in a private home to provide services directly to the employer or a member of their family or household the WAIRC will also take this into consideration.
If an unfair dismissal claim is successful, the WAIRC may order the employer to reinstate the employee to their former job or another suitable position. If it is not practical for the employee to go back to work for the same employer, the WAIRC may order that the employer pays compensation of up to a maximum of six months’ pay.
For information on making or responding to an unfair dismissal claim, visit the Western Australian Industrial Relations Commission website
