Part 6Unfair dismissal

Part 6—Unfair dismissal 105—Interpretation adjudicating authority means— (b) any other court, tribunal, commission or other authority with power to grant relief for wrongful or unfair dismissal; non-award employee means an employee whose employment is not covered by an industrial instrument. 105A—Application of Part (1) This Part does not apply— (a) to a non‑award employee whose remuneration immediately before the dismissal took effect is $100 322 (indexed) or more a year; or (b) an employee who is an apprentice. An apprentice may apply to SAET under the South Australian Skills Act 2008 in respect of disputes or grievances involving their employer. (2) The regulations may exclude from the operation of this Part or specified provisions of this Part— (a) employees serving a period of probation or a qualifying period providing that the period— (i) is determined in advance; and (ii) is reasonable having regard to the nature and circumstances of the employment; and (iii) does not exceed 12 months; or (b) employees engaged on a casual basis for a short period except where— (i) the employee has been engaged by the employer on a regular and systematic basis extending over a period of at least nine months; and (ii) the employee has, or would have had, a reasonable expectation of continuing employment by the employer; or (c) employees whose terms and conditions of employment are governed by special arrangements giving rights of review of, or appeal against, decisions to dismiss from employment which, when considered as a whole, provide protection that is at least as favourable to the employees as the protection given under this Part; or (d) employees in relation to whom the application of this Part or the specified provisions of this Part causes or would cause substantial difficulties because of— (i) their conditions of employment; or (ii) the size or nature of the undertakings in which they are employed; or (e) employees of any other class. (3) To the extent that a regulation under subsection (2)(c), (d) or (e) is inconsistent with the Termination of Employment Convention it is invalid. (4) If a contract provides for employment for a specified period or for a specified task, this Part does not apply to the termination of the employment at the end of the specified period, or on completion of the specified task, unless the employee has, on the basis of the employer's conduct, a clear expectation of continuing employment by the employer. Division 2—Application for relief 106—Application for relief (1) If an employer dismisses an employee, the employee may, before the end of a period of 21 days from the date the dismissal takes effect, apply to SAET for relief under this Part. (2) An employee cannot simultaneously bring proceedings for dismissal before 2 or more adjudicating authorities. (3) If an employee takes proceedings for dismissal under this Part or some other law and the adjudicating authority before which the proceedings are brought considers that the proceedings might have been more appropriately brought under another law before another adjudicating authority— (a) the adjudicating authority may, after hearing the parties, refer the proceedings to the other adjudicating authority to be dealt with under that other law; and (b) the adjudicating authority to which the proceedings are referred must deal with the proceedings as if they had been commenced before that adjudicating authority under the relevant law. Suppose that an employee brings proceedings under the Equal Opportunity Act 1984 seeking relief for dismissal on the ground that the dismissal constitutes an act of discrimination in respect of which a remedy is available under that Act. The relevant authorities under that Act might, if of the opinion that the proceedings might have been more appropriately brought before SAET under this Act, refer the proceedings to SAET. The proceedings would then proceed in SAET as if they had been commenced by an application for relief under this Part. (3a) The period that applies under subsection (1) does not apply in a case involving the referral of proceedings to SAET under another law. (4) No fee may be imposed with respect to an application for relief under this Part.