Unfair dismissal claims are a critical area of employment law, particularly when an employee is let go under questionable circumstances, such as a non-genuine redundancy. In these cases, an employee may feel that their termination was unfair or unlawful, but there are strict time limits and financial caps to consider when pursuing such a claim in Western Australia. This blog outlines the key aspects of unfair dismissal in the context of non-genuine redundancy, focusing on time limits, financial caps, and the process for filing a claim.

1. What is Unfair Dismissal?

Unfair dismissal occurs when an employee is terminated from their job in a way that is harsh, unjust, or unreasonable. Under Australian employment law, employees have the right to challenge their dismissal if they believe the termination was not fair or if the employer failed to follow proper procedures.

A dismissal may be considered unfair if:

• The employee was not given a valid reason for the dismissal.
• The employee was not given an opportunity to respond to the reason for dismissal (i.e., procedural fairness).
• The dismissal was harsh, unjust, or unreasonable, considering the circumstances.

When it comes to a non-genuine redundancy, this occurs when an employer claims that the employee’s position is no longer required, but the redundancy is not genuine. For example, if the role is later filled by someone else or remains in operation under different terms, it could be considered a form of unfair dismissal. In this case, the redundancy claim would be used as a mask for terminating the employee under false pretenses.

2. What is a Non-Genuine Redundancy?

A non-genuine redundancy arises when an employer claims that a position is redundant, but the circumstances do not support that claim. Some examples include:

• The employee’s job is made redundant, but the role is later filled by someone else (either internally or externally).
• The employee is made redundant, but their tasks are reassigned to another employee, effectively retaining the role.
• The employer is restructuring the business for reasons unrelated to financial hardship or organisational change but uses redundancy as an excuse to dismiss the employee.

In these cases, the employee may argue that the dismissal was not due to genuine redundancy but rather a dismissal under false pretences. If this happens, the employee could file an unfair dismissal claim.

3. Time Limits for Claiming Unfair Dismissal in WA

In Western Australia, there are strict time limits for filing an unfair dismissal claim. Whether the claim is for a non-genuine redundancy or another form of unfair dismissal, the key deadlines are as follows:

• Fair Work Commission (FWC): For employees covered by the Fair Work Act 2009, an unfair dismissal claim must be lodged with the Fair Work Commission within 21 days of the termination date. The 21-day period begins from the date the employee was dismissed or left the job, and missing this deadline can result in the claim being dismissed, unless there are exceptional circumstances.
• State System (WA): If the employee is not covered by the Fair Work Act (e.g., for certain state-based employees or those working for employers with fewer than 15 employees), they may need to pursue their claim through the Western Australian Industrial Relations Commission (WAIRC). The time limit for filing a claim in WAIRC is also 21 days from the date of dismissal.

If you believe your dismissal was unfair and related to a non-genuine redundancy, it’s essential to act quickly and lodge your claim within the required timeframe.

4. Financial Caps for Unfair Dismissal Claims

If an employee successfully claims unfair dismissal due to a non-genuine redundancy, they may be entitled to compensation. However, there are financial caps depending on the jurisdiction:

• Fair Work System:
  • If the claim is under the Fair Work Act, compensation is capped at 26 weeks’ pay or a maximum of $81,900 (whichever is lower). This applies to employees who have at least 12 months of continuous service with the employer.
  • For employees with less than 12 months of service, they may still be able to claim for reinstatement or other entitlements, but compensation may not be awarded.
• State System (WA):
  • In the WA state system, the financial compensation for unfair dismissal claims is generally capped at $75,000, although this may vary depending on the case’s specifics (e.g., the length of employment, the severity of the unfair treatment, and any financial losses suffered).

In both systems, the amount awarded depends on factors such as the employee’s length of service, the nature of the dismissal, and any losses incurred as a result of the dismissal. Employees may also be entitled to back pay for any unpaid wages and accrued entitlements, such as unused annual leave or long service leave.

5. Key Steps for Employees Considering an Unfair Dismissal Claim

If you believe you were unfairly dismissed due to a non-genuine redundancy, consider these key steps:

• Document Everything: Keep detailed records of your termination, including any correspondence or meetings leading up to the dismissal. If you were told that your position was redundant but later found out it was filled by someone else, this evidence will be crucial.
• Seek Legal Advice: Unfair dismissal claims, especially those involving non-genuine redundancy, can be complex. It is highly advisable to seek legal advice from an employment lawyer who can assess your situation, advise you on the merits of your claim, and guide you through the process.
• File Your Claim on Time: Ensure that you lodge your unfair dismissal claim within 21 days of your dismissal. If you miss this deadline, your claim may be barred, unless exceptional circumstances apply.

Conclusion

Unfair dismissal claims involving non-genuine redundancy are serious matters that require prompt action. Employees in Western Australia who believe they were dismissed unfairly due to a redundancy that was not genuine have the right to challenge their termination. However, it is important to be aware of the strict time limits and financial caps that apply to such claims. If you have been dismissed under what you believe to be a non-genuine redundancy, seeking legal advice and acting quickly can help ensure that you receive the compensation or reinstatement you may be entitled to.

If you’re unsure about your situation or need help navigating an unfair dismissal claim, don’t hesitate to contact our office for more specific and detailed advice.