This is essentially the termination of a contract of employment in circumstances that are unfair, harsh, unjust, or unreasonable.

For example in Western Australia, the workplace agreement laws strengthen the rights of employees. Those who are dismissed harshly, oppressively or unfairly can make a complaint to an independent arbitrator. If successful, they can be reinstated, compensated or both. The meaning of the term 'unfair' will be determined by the arbitrator in each case.

These guidelines can be and are sometimes different in various states or territories of Australia. Correct interpretation and enforcement of your claim, should be confirmed with a Personal Injury Lawyer in your own State or Territory.

In our example using WA, employee claims of unfair dismissal are dealt with by the Industrial Magistrate's Court, unless the agreement specifically nominates the WA Industrial Relations Commission. The powers of the Court and the Commission are similar.

If an employee has been dismissed for refusing to enter a workplace agreement, for not agreeing to have an agreement varied, or for any other reason, the Court or Commission can order reinstatement, compensation of up to six months wages, or both. It is up to the employer to prove that the dismissal was not for the above reasons.

Claims of unfair dismissal must be lodged with the Court or Commission within 28 days of the termination. Employees can represent themselves at hearings or engage an agent such as a Personal Injury Lawyer or a union official. As mentioned , compensation of up to six months pay can be awarded, with the amount being based on an average of wages received.

As set out in The Workplace Relations Act 1996 , the unfair dismissal provisions are designed to give employees access to a fair and simple process of appeals against dismissals, based on the principle of a "fair go all round", striking a balance between employers and employees.

The provisions of the Act cover two types of termination: harsh, unjust, or unreasonable termination and unlawful termination.

While the Act does not define the phrase "harsh, unjust or unreasonable" it does set out the factors that the Australian Industrial Relations Commission must have regard to when determining such a matter. These include:

• whether there was a valid reason for the termination related to the capacity or conduct of the employee, or the operational requirements of the business;
• whether the employee was notified of that reason;
• whether the employee was warned about unsatisfactory performance beforehand; and
• whether the employee was given an opportunity to respond in relation to the alleged incapacity or misconduct.

The Act prohibits termination of an employee on the following grounds:

• temporary absence from work because of illness or injury;
• membership or non-membership of a trade union, or acting as an employee representative;
• absence from work during maternity leave or other parental leave
• because of the employee's sex, race, age, physical or mental disability, national extraction, religion, pregnancy, sexual preference, pregnancy, marital status, political opinion or family responsibilities;
• the employee has made a complaint seeking enforcement of an award or agreement;
• refusing to negotiate, sign, vary, extend or terminate an Australian Workers Agreement (AWA).

The above information is provided courtesy of WageNet WA and The Workplace Relations Act 1996.

Please note, the above information is supplied in respect to "Unfair Dismissal" laws as they exist specifically for Western Australia. The detail provided should not be compared to your own situation , or be taken as accurate up-to-date legal advice , without first consulting an expert Personal Injury Lawyer in your own location.

Back to Frequently Asked Questions