INDUSTRIAL RELATIONS
Unfair Dismissal
If your employers business is a constitutional corporation a
claim for unfair dismissal can only be lodged if the Organisation you are employed by has over 100 employees.
We can assist in this process of identifying the actual number of
employees.
'The limit of 100 or more employees imposed by the Workplace Relations Act 1996 is not applicable to lodging a claim for unfair dismissal in the Western Australian Industrial Relations Commission if the business is not a Constitutional Corporation.
What is a Constitutional Corporation?
A constitutional corporation is defined as a foreign
corporation, or a trading or financial corporation formed within
Australia.
A corporation for this purpose includes:
• a proprietary company (often indicated by “Pty Ltd”
at the end of the organisation’s name);
• a not-for-profit association incorporated;
• a statutory authority incorporated under special
legislation.
An individual person is not a corporation. Nor is a partnership between two or more persons.
Regis Industrial Relations can ascertain whether your employer is a constitutional corporation and if unfair dismissal is applicable to you particular circumstances
What is Unfair Dismissal?
Unfair dismissal is where an employee claims that they have
been harshly, oppressively or unfairly dismissed and this does not
amount to unlawful termination.
With unfair dismissal you may also be seeking
contractual entitlements that were not paid to you also payment in
lieu of notice of termination as the required period of notice was
not given.( see further down page for the required period of notice
to be given) Contractual entitlements is where a benefit which is
due under your employment contract (not an Award) has not been
allowed.
Who can apply?
Australian Industrial Relations Commission: Who can
Apply?
Employee employed by Employer with over 100 employees
The Employers business is a Constitutional corporation
or;
Employee must have completed a qualifying period of
employment of 6 months or 3 months if commenced
employment prior to 27 March 2006
Employee must not have had their employment terminated
for genuine operational reasons or; for reasons that
include genuine operational reasons
You are not a casual employee employed for a short
period of time. You are not a Trainee. You are not
employed on a seasonal basis
Engaged under a contract of employment for a specified
period of time or a specified task
Remuneration does not exceed $98,200 per year
West Aust Industrial Relations
Commission: Who can Apply?
The limit of 100 or more employees is
only applicable to the Australian Industrial
Relations Commission under the Workplace Act 1996.
In Western Australia the Industrial Relations Act
1979 applies
The Employers business is not a
Constitutional Corporation
You are an Employee. Contractors
cannot apply
Employee must not have had their
employment terminated for genuine operational
reasons or; for reasons that include genuine
operational reasons
Salary Cap
for lodging claims for unfair dismissal.
There is a maximum salary beyond which persons are
not permitted to lodge a claim alleging unfair
dismissal or denial of contractual benefits. The
amount is adjusted each July 1. From July 1 2007 the
amount is capped at $111 800
How long do you have to lodge a claim?
To lodge a claim for unfair dismissal in the
Western Australian Industrial Relations Commission you have a period
of 28 dates from the date of termination.
In certain circumstances this period may be
increased by application for extension of time. You cannot lodge a
claim for unfair dismissal in both Commissions at the same time.
An employee that may be excluded from making
an unfair dismissal claim may still be able to lodge an application
on the grounds of unlawful termination.
Unlawful Termination
Section 659(2) of the Workplace Relations
Act 1996 sets out the areas which may amount to unlawful
termination. An employer must not terminate an employee for the
following reasons, or reasons which include any of:
non-membership of a trade union
trade union membership or participation in
trade union activities outside working hours or, with the
employers consent during working hours
acting as a representative of employees or
as a union official
filing a complaint or being involved in a
case against an employer involving alleged violation of laws or
regulations or recourse to competent administrative authorities.
race, colour, sex, sexual preference, age,
physical or mental disability, marital status, family
responsibilities, pregnancy, religion, political opinion,
national extraction or social origin
refusing to negotiate, in connection with,
make, sign, extend, vary or terminate an Australian Workplace
Agreement.
absence from work
during maternity leave or other parental leave.
temporary absence from work because of
illness or injury
temporary absence from work because of
carrying out of a voluntary emergency management activity, where
the absence is reasonable having regard to all the
circumstances.
It is also unlawful for an
employer to provide the employee with insufficient notice for
termination
Notice
How long do you have to make a claim for unlawful
termination?
Denied Contractual Benefits
Contractual benefits
can include outstanding
bonuses, extra leave, unpaid overtime, redundancy payments and other
entitlements.
An employee has a time period of 6 years in which to lodge
a contractual benefits claim
If you have a query at all in
regard to unfair dismissal, denied contractual benefits or unlawful termination please
do not hesitate in contacting us to make an appointment for an initial
consultation to see where you stand. It is important that this be done
immediately due to the time constraints imposed by the
relevant Legislation
Contact Details Telephone: (08) 93363565
Mobile : 0416 354 339
By email
admin@regis.net.au
Street
Address: Suite 46 First Floor
Coastal Business Centre
Old Fremantle Goal (Knutsford
Street Entrance)
2 Knutsford Street
Fremantle Western
Australia 6160
Mailing
Address: PO Box 1616
Fremantle Western
Australia 6959
The following tables set out who is eligible to lodge a claim
for unfair dismissal in the Australian and Western Australian
Industrial Relations Commission.
You have 21 days from the date of termination with which to
lodge a claim in the Australian Industrial Relations Commission for
unfair dismissal.
Unlawful termination applies regardless of the number of
employees in an Organisation.
The
period of notice that is to be given is dependent upon the amount of
time the employee was employed. The employee if terminated and not
allowed to serve out this period of notice must be paid the period of
notice in lieu. The following table sets out the minimum length of
notice that an employer must give to the employee.
Period
of continuous service
Period
of notice/pay in lieu
Not more than 1 year
At least 1 week
1 year up to 3 years
At least 2 weeks
3 years up to 5 years
At least 3 weeks
More than 5 years
At least 4 weeks
(If employee is over 45 and employed
for more than 2 years)
(Add one week in addition to the above
amounts)
The time period with which to lodge a claim for unlawful
termination in the Australian Industrial Relations Commission is within 21 days
of termination of employment.
Contractual entitlements is where a benefit which is due under
your employment contract (not an Award) has not been denied by the
employer.