Western Australian Consolidated Acts

INDUSTRIAL RELATIONS ACT 1979 - SECT 23A

23A .         Powers of Commission on claims of unfair dismissal

        (1)         The Commission may make an order under this section if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair.

        (2)         In determining whether the dismissal of an employee was harsh, oppressive or unfair the Commission shall have regard to whether the employee —

            (a)         at the time of the dismissal, was employed for a period of probation agreed between the employer and employee in writing or otherwise; and

            (b)         had been so employed for a period of less than 3 months.

        (3)         The Commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.

        (4)         If the Commission considers that reinstatement would be impracticable, the Commission may order the employer to re-employ the employee in another position that the Commission considers —

            (a)         the employer has available; and

            (b)         is suitable.

        (5)         The Commission may, in addition to making an order under subsection (3) or (4), make either or both of the following orders —

            (a)         an order it considers necessary to maintain the continuity of the employee’s employment;

            (b)         an order to the employer to pay to the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal.

        (6)         If, and only if, the Commission considers reinstatement or re-employment would be impracticable, the Commission may, subject to subsections (7) and (8), order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal.

        (7)         In deciding an amount of compensation for the purposes of making an order under subsection (6), the Commission is to have regard to —

            (a)         the efforts (if any) of the employer and employee to mitigate the loss suffered by the employee as a result of the dismissal;

            (b)         any redress the employee has obtained under another enactment where the evidence necessary to establish the claim for that redress is also the evidence necessary to establish the claim before the Commission; and

            (c)         any other matter that the Commission considers relevant.

        (8)         The amount ordered to be paid under subsection (6) is not to exceed 6 months’ remuneration of the employee.

        (9)         For the purposes of subsection (8) the Commission may calculate the amount on the basis of an average rate received by the employee during any relevant period of employment.

        (10)         For the avoidance of doubt, an order under subsection (6) may permit the employer concerned to pay the compensation required in instalments specified in the order.

        (11)         An order under this section may require that it be complied with within a specified time.

        (12)         The Commission may make any ancillary or incidental order that the Commission thinks necessary for giving effect to any order made under this section.

        [Section 23A inserted by No. 20 of 2002 s. 138(1)  ⁴ .]