The Fair Work Act 1994 (SA) applies to employees not covered by the Fair Work Act 2009 (Cth). This is only State Government and Local Government employees – Private sector employees are covered under the Federal system.

Under the Fair Work Act 1994 (SA) [s 109] if it can be shown to the South Australian Employment Tribunal (SAET) that an employee was dismissed in a manner that was harsh, unjust or unreasonable, SAET can order the employer to reinstate the employee in the same or a different position or, if that is not appropriate, to pay to the employee an amount of compensation.

However, some employees are excluded from taking action under this provision, including:

  • An employee not covered by an award who earns over a certain amount ( $148 917 as at 1 January 2020- this amount increases each year with rises in the cost of living).
  • An employee on a fixed term contract or a contract for a set task, who is dismissed when the time has run out or the task is done. Of course, they may have a claim if they are wrongly dismissed before then.
  • An employee who is on a probationary period, as long as it is not unreasonably long and is determined in advance. The probationary period cannot extend beyond 12 months, but most probationary periods are less than three months.
  • A ‘casual employee’ – but not all workers who are called ‘casual’ really are so. If a so-called “casual” employee has worked on a regular basis and systematic basis (currently 6 months or more), and reasonably expects the work to continue, they can make a claim.
  • A trainee under a traineeship, or an apprentice whose employment is limited to the period of the contract of training.
  • An independent contractor
  • An employee who is already making another claim for the same dismissal. For example, a complaint to the Equal Opportunity Commission alleging that the employee was dismissed on discriminatory grounds.

A dismissed employee must file an application for unfair dismissal in the Registry of the South Australian Employment Tribunal (SAET), within 21 days after the dismissal took effect. Although SAET can extend that period if it thinks fit, it must not be assumed that the SAET will do so. Other difficulties can arise if the dismissed employee unduly delays taking action – for example, another person may have been employed whose circumstances must be taken into account in considering whether or not to extend the time.

After the lodgement of the application, the Registrar serves the application upon the respondent employer. The employer must then provide an answer to the response within 10 days, ‘Employer Response’. When the response is filed, the Registrar serves a copy on the applicant.

After the application and response have been filed and served, the claim is referred to a conciliation conference with the employer and the employee to try and resolve the dispute in an informal manner. Any agreement reached at this stage is binding on the parties. Importantly, the conciliation conference deals with matters ‘in confidence’ and more than 90% are resolved at this stage.

If the matter is not resolved at the conciliation conference, it must be referred for a formal hearing, called an arbitration.