Q&A: Dismissal for WA employees

If you have left your job on good terms and you’re confident you have been paid everything you are owed, there might not be anything you need to do.

This Q&A is mainly for employees who have been dismissed or forced to resign. However, there is also some information on final pay upon dismissal. If you just need some information on final pay then you can skip to that section.

Being dismissed is sometimes referred to as “being fired” or “being let go”. The most common type of dismissal occurs when your employer tells you that you no longer have a job. However, there are other times when you might still be considered “dismissed” by law, even if you haven’t been told that you no longer have a job. If you’re unsure whether or not you’ve been dismissed, see the section below this one for more information.

You might be really stressed or upset if you’re fired or lose your job, but there are some things you should think about as soon as possible, such as:

• why did I lose my job? Was there a good reason? Were there any alternatives my employer could have taken where I wouldn’t have lost my job?
• what was the process that my employer went through before I lost my job? Was it a fair process?; and
• what have I been paid for my final pay? Was I paid what was owed to me?

This Q&A provides information on when a dismissal might be unfair or unlawful, the claims that you can make to dispute a dismissal, and some other commonly asked questions.

We also have separate claim guides on the different dismissal claims we talk about in this Q&A. We recommend that you read this Q&A first, then read the appropriate claim guide when you are ready to make a particular claim. Of course, you can also read the claim guides if you are considering different  claims, or considering whether or not to make a claim and need more information.

If you still need help after reading this Q&A you should consider seeking legal advice from Circle Green here.

It’s important to remember that some dismissal-based claims must be made within 21 days of your dismissal taking effect, so you should act quickly if you are considering making a claim. It is very hard to get a claim accepted outside of these time limits.

You have usually been dismissed if one of the following situations occurred:

1. Your employer has told you that you are fired or that your employment has been terminated.
You might have been given a formal letter of dismissal or simply told “you’re fired” or “don’t come back”.

2. Your employer has told you that your job has been made redundant.
The most common example of a redundancy is where you lose your job because it doesn’t exist anymore and no one else is replacing you. Sometimes a redundancy can be disputed with a dismissal-based claim and we consider that below. We also have a separate Q and A on redundancy you may wish to look at.

3. You resigned, but you were forced to resign because of your employer’s conduct.
In some (not all) situations, a resignation can be treated as a dismissal and is called a constructive dismissal. It can be difficult to prove. This is also discussed further below.

4. You have been demoted to a job that is significantly different to your old job and/or your pay has been cut.
Demotions are not always “dismissals” but if the new job is quite different or your pay has been reduced significantly, you might have been dismissed from your previous role and be able to make a dismissal-based claim.

5. Your casual shifts have been cut and there’s no indication you will be rostered on again.
If you are a casual employee, it can be difficult to know when a dismissal has occurred. However, it is still possible for casuals to be dismissed, particularly if you worked regular hours prior to your shifts being cut.

This is not a complete list of situations that might be considered a “dismissal”. If you have lost your job or are not working because of the actions of your employer, you may have been dismissed and should consider seeking legal advice from Circle Green here.

A demotion is where your employer decides, without your agreement, to move you to a lower role.

In some circumstances, a demotion can be a dismissal. If you were demoted and there was a significant reduction in your pay, duties, or status, you might be able to argue your demotion was a dismissal.

Some awards and enterprise agreements set out certain rules or requirements for demotions that employers must follow. If an award or enterprise agreement applies to your employment, you should check if it says anything about demotions.

If you have been demoted and don’t agree with being moved to a lower role, you may need to take quick action to dispute your demotion and avoid your employer arguing you agreed with it. You might like to consider taking one or more of the following actions:

• notifying your employer in writing that you do not agree to being demoted;
• if you are required to commence working in the lower role, notifying your employer in writing that you are only doing so under protest;
• if your demotion is a breach of your award or enterprise agreement, following the dispute resolution process; and/or
• If you think your demotion could be a dismissal, making a dismissal-based claim.

If you think your demotion could be a dismissal, you could have as few as 21 days to make a dismissal-based claim.

If you work in the new role and don’t take steps to dispute the demotion, you might be found to have accepted the new role and this may make it more difficult to successfully argue that you were dismissed.

An employee who resigns voluntarily is not able to make a dismissal-based claim, because they made a choice to end their employment and were not dismissed by their employer.

However, if you are forced to resign because of the way your employer acted, you may be able to argue that it wasn’t really your choice to leave. This is called a “forced resignation” or “constructive dismissal” and allows you to make a dismissal-based claim, even though you resigned.

To successfully argue constructive dismissal, you have to show that your employer committed a serious breach of your employment contract. For example, if your employer didn’t pay your wages, you could argue that they aren’t willing to follow the contract anymore – because receiving wages is such a core part of the agreement. If your employer was forcing you to work in unsafe conditions, they might be showing that they are unwilling to follow their core obligation to ensure safety and health in the workplace.

It’s often also necessary to show that your employer’s conduct left you with no other choice but to resign. For example, if you quit because you were being bullied, but you never reported it to your employer, it might be difficult to make an argument for constructive dismissal. If you still had the option to report it and see if this improved the situation, then resigning may not have been your only choice.

Constructive dismissal is not a claim on its own. You only make an argument of constructive dismissal for the purpose of demonstrating a “dismissal” for one of the dismissal-based claims listed above.

For some of these claims, you aren’t permitted to continue your claim if you fail to demonstrate that you were dismissed. So, if you resigned, your employer may argue that you aren’t able to continue the claim because no dismissal occurred. This is often called a “jurisdictional objection” and requires you to prove that your resignation was actually a constructive dismissal, to be able to continue.

It can be very difficult to successfully argue constructive dismissal, so before you make a claim you may wish to consider seeking further information and assistance.

Keep in mind that limitation periods can be as short as 21 days.

Unfair dismissal and redundancy

A typical redundancy occurs when a business or organisation undertakes a re-structure and certain roles are removed without being replaced. If you think there was a different reason for your redundancy and someone is still doing your role, it might be that the redundancy wasn’t “genuine” or was a “sham” redundancy, meaning it was used as an excuse to fire you.

In this circumstance you can make an unfair dismissal claim (if you are otherwise eligible). Of course, it’s likely that your employer will argue that the reason for your dismissal was a redundancy, so you will have to be able to make an argument and provide evidence that shows there was not a redundancy, and no good reason for your dismissal.

If you are a national system employee, you can also argue that a dismissal was unfair if:

• your employer has not complied with any obligation in a modern award or enterprise agreement that applied to your employment to consult about the redundancy; or
• it was reasonable in all the circumstances for you to be redeployed within your employer’s organisation (including certain related organisations).

State system employees can also argue a dismissal was unfair if they were not consulted about the redundancy.

If you have been given redundancy pay, it’s likely that this amount would be subtracted from any compensation you receive as part of an unfair dismissal claim.

You can contact us to make a request for legal advice here:  https://circlegreen.org.au/get-help/

Prohibited reasons, discrimination and redundancy

You may think that your redundancy wasn’t just a business decision and that there was another reason behind it. If the reason you were selected for redundancy was unlawful discrimination, or a prohibited reason under a dismissal-based claim, you might be able to take legal action.

For example, if you feel you were selected for redundancy because you made a complaint or enquiry to your employer, you might be able to make a general protections claim (if you are a national system employer) or a protection of employee rights claim (if you are a state system employer).

You might also have a general protections claim in the national system if you were selected for redundancy because you exercised a workplace right, such as taking personal (sick) leave, or for a discriminatory reason such as your age, race or sex.

For more information see our publications on:

Q&A: Workplace discrimination for WA workers

Q&A: Protected complaints and actions for WA workers

Claim guide: General protections for national system employees

Claim guide: Protection of employee rights for state system employees

Not every claim is available to all employees.

There are different dismissal-based claims and each has eligibility criteria.

Your first step is checking which system of employment laws you are in, the state system or national system. The state system and national system have their own dismissal-based claims that can only be made by employees in that system.

For help, see our publication Q&A: State or National System for WA Employees.

If you don’t know this, you might make the wrong claim. By the time you have found out it’s the wrong claim, you may be outside the time limit to make the right claim.

When you know which jurisdiction you are in, you can read the information below for help in figuring out which claims you are eligible to make, and which are most appropriate to your circumstances.

Below you will find a table and brief summaries of claims available to both national and state system employees. We also have a specific and detailed claim guide for each claim. You can find our claim guides here.

You might find that there is more than one type of claim that you are able to make. However, generally you have to choose just one. There are laws that prevent you from making multiple claims for the same dismissal.

If you aren’t sure which type of claim to make, you can consider the sections below in this Q & A, and you should also consider seeking legal advice from Circle Green here.

Common claims used to dispute a dismissal

*Discrimination claims are not technically dismissal-based claims but can be used to dispute a dismissal that involves unlawful discrimination.

As the name suggests, you can make an unfair dismissal claim where you believe that your employer has acted unfairly in dismissing you. You need to show that your dismissal was harsh, unjust or unreasonable and there are a number of ways of doing this.

Some common arguments are that:

You can make more than one of these arguments – for example you might argue that the reason given wasn’t fair AND that a fair procedure wasn’t followed.

If you are national system employee, an unfair dismissal claim is made to the Fair Work Commission. If you are a state system employee, you make the claim to the Western Australian Industrial Relations Commission.

There are rules around who can make a claim. We call these rules “eligibility” requirements, and they are different for national and state system employees. For example, national system employees must have been employed for a minimum of 6 months (and sometimes longer) to be able to make a claim (eligible). In the state system, some types of employees, including most public servants and police officers may be unable to make an unfair dismissal claim (ineligible), depending on certain factors.

For further information, see our claim guides:

Unfair dismissal for national system employees

Unfair dismissal for state system employees

If you are a national system employee, you can make a general protections claim if you have been dismissed for a prohibited reason.

There is no minimum employment period so, unlike unfair dismissal, you can make a claim even if you are dismissed shortly after you started working.  However, you must be able to show that your dismissal was for a prohibited reason. If you can’t do this, your claim will fail, even if the dismissal was “unfair”.

There are a number of prohibited reasons. Some examples are:

• you were dismissed because you made a complaint or enquiry about your job;
• you were dismissed because you exercised a workplace right;
• you were dismissed because you were absent from work while you were sick; and
• you were dismissed for a discriminatory reason like your race, colour, sex, sexual orientation, age, disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

For a full list of prohibited reasons and other information on this claim, see our claim guide:

General protections (dismissal) for national system employees

If you are a state system employee, you can make a protection of employee rights claim if:

• you were dismissed because you made a complaint or enquiry about your job (including where you proposed to make a complaint or inquiry); or
• you were dismissed so your employer could re-hire you as a contract worker to do the same job or a similar job.

For further information see our claim guide:

Protection of employee rights for state system employees

If you are a state system employee, you can make an unlawful termination claim if you were dismissed for a prohibited reason. The “prohibited reasons” for unlawful termination are different to those for general protections, even though there are some similarities.

Prohibited reasons for unlawful termination include the following:

• you were dismissed for filing a complaint with a workplace authority (for example you lodged a complaint about workplace safety with WorkSafe);
• you were dismissed for a discriminatory reason including your race, colour, sex, sexual orientation, age, disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
• you were dismissed for being temporarily absent from work while sick;
• you were dismissed for being a trade union member, or for refusing to join a trade union.

Note: even though this claim is only available to state system employees, it is made to the Fair Work Commission (which otherwise generally deals with national system employees).

For a full list of prohibited reasons and further information sour claim guide:

Unlawful termination for state system employees

Discrimination occurs when you are treated differently because of something about you or your situation. Only certain discrimination is unlawful.

It’s unlawful to be treated differently in the workplace because of a protected characteristic. For example it is unlawful to discriminate against someone based on their age or race or gender identity.

If you are dismissed because of a protected characteristic you can make a claim to the Australian Human Rights Commission (AHRC) or the Equal Opportunity Commission (EOC). If you are a national system employee, another option is to make a general protections claim. If you are a state system employee, another option is to make an unlawful termination claim.

Claims to the AHRC and EOC are not “dismissal-based” claims so you can include other discrimination that occurred during employment.

For more information about protected characteristics including a list, see our publication Q&A: Workplace Discrimination for WA Workers

When making this decision, you should consider eligibility, claim process and potential outcomes. The information below assumes you are eligible to make both claims and have good argument under both claim processes, In particular, if you have been employed for less than 6 months (or less than 12 months if your employer has fewer than 15 employees), then you are probably ineligible to make an unfair dismissal claim. If you aren’t sure about your eligibility or the strength of your potential claims, you may wish to read the claim guides first.

Process

Generally, an unfair dismissal claim has a simpler process and is less technical than a general protections claim, which might be helpful if you do not have a lawyer. Both claims are made to the Fair Work Commission and both claims usually proceed to conciliation first. However, if conciliation is unsuccessful, the process differs.  Unfair dismissal claims that proceed beyond a conciliation are determined within the Fair Work Commission, whereas general protections claims must often proceed to a federal court to be determined.

Outcomes

Compensation for an unfair dismissal claim is generally capped at 6 months wages, and only includes compensation for loss of income. Compensation for a general protections claim is uncapped. From a practical point of view, compensation outcomes are normally still focused on lost wages, however you can also be compensated for hurt, stress, and humiliation, as well as any other loss you can demonstrate.

A general protections claim is also considered a more serious breach of the Fair Work Act. For this reason, the court can also choose to award penalties against the employer, and any other person involved in the actions that breached the law.

Making your argument

Unfair dismissal is normally easier to demonstrate. For example, consider the situation where you have been dismissed for making a complaint. If you are arguing unfair dismissal, you only need to argue that there was no fair procedure or fair reason for dismissal. Even if your employer can prove that the complaint wasn’t the true reason for dismissal, you can still be successful if a fair procedure wasn’t followed, or the true reason itself wasn’t a good reason to dismiss you.

In a general protections claim, if your employer can convince the court that there was another reason for your dismissal (for example, your performance or conduct), then you will be unsuccessful, even if the alternate reason for dismissal was unfair. A general protections claim is only concerned with whether or not your dismissal was for a prohibited reason. An unfair dismissal claim can take into account broader concepts of fairness.

Conclusion

If your argument is equally strong for both unfair dismissal and general protections, then the factors above are normally the most relevant. Unfair dismissal is simpler to argue and doesn’t need to proceed to a federal court. However, compensation is capped at 6 months wages. General protections can be harder to prove, more technical to argue and will be a lengthier, more formal process if you want to go to a final hearing. However, compensation is uncapped and penalties can be awarded against the employer.

For more information on these claims, see our other publications Claim Guide: Unfair dismissal for national system employees and Claim Guide: General protections (dismissal) for national system employees.

When making this decision, you should consider eligibility, claim process, potential outcomes and limitation periods. The information below assumes you are eligible to make all of these claims, are within time and have good arguments under all claim processes. If you aren’t sure about this, you may want to read the claim guides first.

Reason for dismissal

While there is some overlap between these claims, often the reason for dismissal will indicate which claim is likely to be appropriate:

Sometimes you will be able to make more than one claim. For example, if a pregnant person was fired for complaining about having to do unsafe work while pregnant,  they could make any of the three claims. They would have been fired for complaining about a workplace right to safety, they may have been fired for their pregnancy (a discriminatory reason) and it would appear the reason was unfair, and possibly there was not a fair process before the dismissal happened.

In this type of situation, where more than one claim is available, the factors below might be considered.

Process

Generally, an unfair dismissal claim has a simpler process and is less technical than the other claims. An unfair dismissal claim is made to the Western Australian Industrial Relations Commission. A PERs claim must be made to the Industrial Magistrates Court. An unlawful termination claim can be made to the Fair Work Commission, but it may need to be taken to a federal court for a final hearing.

Outcomes

Compensation for an unfair dismissal claim is generally capped at 6 months wages, and only includes compensation for loss of income. Compensation for a PERs claim or an unlawful termination claim is uncapped. From a practical point of view, compensation outcomes are normally still focused on lost wages, however you can also be compensated for hurt, stress, and humiliation, as well as any other loss you can demonstrate.

PERs claims and unlawful termination claims are also considered a more serious class of claim than unfair dismissal. For this reason, the court can also choose to award penalties against the employer, and any other person involved in the actions that breached the law.

Making your argument

Making an unfair dismissal claim in the state system is generally a less technical claim This is because you can make an unfair dismissal claim for any unfair reason or process.

An unfair dismissal claim is more general in nature – even if you don’t know your employer’s reasons for acting, you can still be successful if it’s clear there was not a good reason, or not a fair process.

In contrast, for PERs claims and unlawful termination claims, the court would have to be satisfied that the reason for dismissal has been demonstrated, and that it is a prohibited reason. If the court can’t determine the reason for dismissal, or is satisfied that it was a different (non-prohibited) reason, then you will be unsuccessful, even if it was still an unfair decision or process overall.

Conclusion

If your argument is equally strong for all these claims, then the factors above are normally the most relevant. Unfair dismissal is simpler to argue and doesn’t need to proceed to a court for a final hearing. However, compensation is capped at 6 months wages. PERs and unlawful termination claims can be harder to prove, more technical to argue and may be a lengthier, more formal process if you want to go to a final hearing. However, compensation is uncapped and penalties can be awarded against the employer.

For more information on these claims, see our other publications Claim Guide: Unfair dismissal for state system employees, Claim Guide: Protection of employee rights for state system employees and Claim Guide: Unlawful termination for state system employees.

A time limit, or “limitation period”, is the time frame within which you must make a particular claim. If you don’t make a claim within the time limit, you may lose the right to make the claim. You can find a complete list of limitation periods in the common claims table below.

For example, if you wanted to make an unfair dismissal claim to the Fair Work Commission, you would have to make it within 21 days.

Generally, the time starts running from the date your dismissal “took effect”.

The date that your dismissal “took effect” is normally the latest of:

• your last day of work; or
• the date your dismissal was communicated to you.

Note that there are some exceptions to this general rule. If you are unsure, it’s best to be cautious and choose the earliest date that you think your dismissal took effect.

A dismissal does not take effect until it is communicated to the employee. In most circumstances this is pretty clear, because the employer tells the employee in person. However, if the employer dismisses the employee by sending a text message, email or letter by post, then the dismissal may only take effect when the employee reads the message.

For some claims, you are able to make an application over the phone. This can be helpful if you have problems reading or writing, or if you are close to the end of the limitation period and don’t have time to make a written application.

For example, if you are on the last day of the limitation period, you should call the registry for the court or commission where you make the claim to find out what your options are. It might be that they can accept your claim over the phone, and you can follow up with a full written application the next day.

Although weekends and public holidays count towards the lime limit, if the final day of the time limit is a weekend or a public holiday, then the time limit will be extended until the next business day.

If you are many weeks or months over the deadline, it is very unlikely that you will be able to get a claim accepted.

However, some late claims will be accepted if there are exceptional circumstances for the delay, particularly if you are only late by a day or a few days.

If you are making a claim after the limitation period, you have to include an “out of time” argument as part of your claim.

Some claim forms have a section for you to write an out-of-time argument. If there is no section, you should write it out in a separate document and include it as an attachment to your claim.

For a dismissal-based claim, you need to show exceptional circumstances to have a claim accepted out of time. Saying that you were stressed, or busy, or that you weren’t aware of the limitation period is unlikely to be considered an exceptional circumstance.  A medical condition or an illness won’t be considered an exceptional circumstance unless it is so serious that you couldn’t reasonably have been expected to be able to lodge a claim.

Generally, an out-of-time argument should include the following parts:

• the reason why you didn’t make the claim within the limitation period;
• whether you knew about your dismissal when it took effect;
• any action you took to dispute the dismissal;
• whether or not a late claim will be unfair on your employer; and
• the merits (strength) of your claim.

The Australian Human Rights Commission and the Equal Opportunity Commission have different tests for accepting discrimination claims made out of time. While these tests are not as strict as for dismissal-based claims, you should still make a claim within time wherever possible.

If you are fired because you engaged in serious misconduct your rights and entitlements may be impacted. For example:

• you generally won’t have a right to receive notice of termination (or pay in lieu of notice) and may be dismissed on the spot;
• you may lose any right you have to be paid out long service leave on termination; and
• your rights to challenge your dismissal may be limited because serious misconduct is usually a valid reason for dismissal.

However, you should generally still get any wages or annual leave owed to you, even if you engaged in serious misconduct.

As well as this, your employer still needs to follow a fair process when dismissing you. In most situations, it is reasonable to expect that your employer  will explain the accusations to you, and give you an opportunity to respond.

What if I disagree with the accusations?

Importantly, your employer can’t simply decide that your actions were “serious misconduct”. There is a particular definition of serious misconduct under the law and it is a very high bar. In most “regular” cases of dismissal, it will be quite difficult for an employer to demonstrate serious misconduct.

Serious misconduct is misconduct that is so serious that it justifies firing you on the spot. It normally involves a risk to the reputation of your employer, a risk to the profitability of your employer, a risk to health and safety, or actions that show you are no longer willing to do your job and comply with the main terms of your contract.

Some examples of serious misconduct include:

• theft or fraud;
• being drunk or under the influence of illicit drugs at work;
• conduct that causes imminent and serious risk to the health and safety of others (e.g. a serious safety incident) or the reputation or profitability of the employer’s business (e.g. taking clients or work from your employer);
• sexual harassment and bullying;
• fighting or other aggressive behaviour at work; and
• failing or refusing to carry out a lawful and reasonable direction.

Whether serious misconduct has occurred will depend very much on the circumstances of each case. Some of these examples above might not meet the definition of serious misconduct in all cases.

Being accused of serious misconduct can have significant consequences for any dismissal-based claim you might make, and for your entitlements. If you are in this situation you should consider seeking further information and assistance.

An employer “gives notice” to an employee when they tell an employee they are going to be dismissed on a date before the dismissal takes effect. For example, if your employer says they are dismissing you, and you will finish working in two weeks’ time, they are giving you two weeks of notice.

Casual employees

If you are a casual employee, you are not usually entitled to much notice for a dismissal. If your employer is cancelling shifts that have been rostered, they should give you reasonable notice, which may be as few as 2 hours, depending on the circumstances. They may also have to comply with requirements about notice in any contract, award or agreement that covers your employment.

Permanent employees

If you are a permanent employee, you must be given notice, or “paid in lieu”, which means your employer has to pay you for the hours you would have worked if you had been given the correct amount of notice.

You are entitled to at least the minimum notice set out in the table below. If your contract requires your employer to give you more notice than this minimum, then they should give you the notice set out in your contract. If your contract provides for less notice than the minimum below, it is likely to be invalid and you are still entitled to the minimum.

Minimum notice periods:

If you are over 45 and have worked for your employer for at least 2 years, you should be given an extra week of notice on top of the minimum.

You can’t choose whether you work out your notice period or are “paid in lieu” (see above). If you are a permanent employee and your employer decides they want you to work out your notice period, then you are required to do so.

You may be able to reach an agreement with your employer – for example you might ask to work from home or to take accrued annual leave or unpaid leave. However, your employer doesn’t have to agree to these alternatives, particularly if there’s a good business reason why they need you working.

You do not have to go to work if you are unfit for work due to an illness or injury. If you have accrued personal leave, you should be paid while you are absent (until you have used up all your accrued leave). Your employer has the right to ask you for reasonable evidence of your illness or injury, which is normally a medical certificate.

Of course, you can resign from your employment at any time, even after your employer has given you notice. However, you then need to give your employer notice, so in most circumstances it won’t shorten the time you are required to work.

Keep in mind that resigning may have consequences for making a dismissal-based claim or for social security (welfare) payments.

To find out how much notice you need to give to your employer to resign, you should check your contract, as well any industrial award or agreement that applies to you.

If you refuse to work out the notice period that your employer has given you, then you may be seen to be “abandoning employment”. Your employer may be able to make a claim against you for the notice you should have given when resigning. In some circumstances they are also allowed to lawfully withhold owing annual leave to cover the notice you should have given. This is normally limited to one week of owing annual leave and set out in an industrial award.

If you are a casual employee, you should be paid for all hours worked.

If you are a permanent employee, you should be paid for hours worked, as well as any notice, annual leave, redundancy and long service leave that you are entitled to.

Annual leave

You should be paid for any untaken annual leave that you have accrued. You can see how much annual leave you have left by looking at your payslips. If you are not provided with payslips, your employer is likely to be breaching the law and you may wish to seek further information and assistance.

Notice

If you were not given the correct amount of notice (see above) then you should also be paid “in lieu” for the amount of notice not given.

Redundancy pay

If you were made redundant, you may be entitled to redundancy pay. A redundancy most commonly occurs where your job no longer exists because of a business re-structure.

For more information on redundancy and redundancy pay see our publication “Q&A: Redundancy for WA employees”

Long service leave

If you have worked for 7 years or more with your employer, you may also be entitled to long service leave, even if you are a casual, or worked for some of that time as a casual. There are some limited situations where you may be entitled to long service leave even if you have not worked for 7 years.

For more information on long service leave you can contact Wageline.

Personal and carer’s leave (including sick leave)

Personal and carer’s leave is not normally paid out on termination.

Time off in lieu (TOIL)

You may have time off in lieu (TOIL) that you have not yet taken when you are dismissed. If this is the case, you need to find out where your entitlement to TOIL comes from. You should first call Wageline (state system employees) or the Fair Work Ombudsman (national system employees) to find out if an award applies to you, and whether it sets out the rules for TOIL. If this is not the case, your entitlement to TOIL may come from your contract of employment, so you should read it carefully to see what it says about TOIL that is untaken when you finish employment.

The general rule is that you must be paid your wages in full and your employer can’t choose to take anything out from the money that they owe you.

There are some very limited circumstances where an employer can lawfully take money out of your final pay including:

• where you have authorised the deduction in writing and it’s for your benefit; or
• where the deduction is authorised by a law, a court order, an industrial award or a registered agreement.

Some awards and enterprise agreements allow your employer to deduct up to one week’s wages from your final pay if you are over 18, have failed to give notice (e.g. quit and walked out) and the deduction is not unreasonable. If an award or enterprise agreement applies to you, you should read it carefully.

If your employer has deducted from your pay and you feel that it isn’t reasonable, you can call Wageline if you are a state system employee and the Fair Work Infoline if you are a national system employee.

If you still need help you should consider seeking further information and assistance.