Making an unfair dismissal claim in South Australia

A claim of unfair dismissal in SA is a straightforward process that can help you hold your employer accountable. If you have been subject to a harsh termination or had your rights violated while being sacked or let go, you may be eligible to make an claim with the SA office of the Fair Work Commission.

In this article, we explain everything you need to know about making a claim in SA. We also share two cases of unfair dismissal in that demonstrate how the FWC and SA Employment Tribunal make decisions.

Unfair dismissal in SA: The Fair Work Commission Adelaide

All private sector and Commonwealth public service employees can make a claim for unfair dismissal in SA via the Fair Work Commission. When you lodge a claim in SA with the Fair Work Commission, it will pass your claim onto your employer for a response. Once their response is received by the Fair Work Commission, it will organise a conciliation between you and your employer.

If you and your employer can not reach a settlement during conciliation, your unfair dismissal claim will proceed to a conference or hearing. Conferences and hearings are arbitrated by a officer from the Fair Work Commission. For private sector and Commonwealth public service employees, claims in SA fall under the Federal Fair Work Act 2009.

The main office for the Fair Work Commission in SA is in Adelaide. The office is located on level 6, Riverside Centre, North Terrace in the Adelaide CBD. The office is where the hearings and conferences take place.

Unfair dismissal in SA: The South Australian Employment Tribunal

The South Australian Employment Tribunal is a statutory independent body that resolves disputes in SA. It also arbitrates on other work-related disputes and issues. The SA Employment Tribunal resolves claims for SA employees who are not covered by the federal Fair Work Act 2009. In other words, employees whose employers do not fall under the federal Fair Work system. For state and local government employees, unfair dismissal in SA falls under the state Fair Work Act 1994.

Employees who do not fall under the Fair Work system include those who work for state or local government agencies. For these employees, lodging a claim for unfair dismissal in SA must be done via the South Australian Employment Tribunal. Which is unlike all private sector and Commonwealth employees, who must make a claim via the Fair Work Commission.  

There are exceptions, however, when South Australian state and local government employees are covered by the Fair Work system. This occurs when their employer has a registered agreement with the federal system.

How do I make a claim for unfair dismissal in SA?

To make an claim, you must do so within 21 days of your dismissal. It is imperative that you meet this deadline. The Fair Work Commission and SA Employment Tribunal only in very rare circumstances will allow for a time extension.

You can access all the information you need to make a claim of unfair dismissal in SA on our website. You can also read more about the different ways employees can be unfairly dismissed here.

Unfair Dismissal in SA: Nurse dismissed for being overweight

An example of an unfair dismissal case arbitrated by the South Australian Employment Tribunal is Geselle v Department for Health and Wellbeing [2021]. This SA unfair dismissal case involved registered nurse Heike Geselle, who began working for Lyell McEwin Hospital in Adelaide in 1993.

The hospital is run by the South Australian Department for Health and Wellbeing, which makes Ms Geselle a state government employee. Any state government employee who makes a claim for unfair dismissal in SA must do so via the Industrial Relations Commission of South Australia. Unfair dismissals in SA of this nature fall under the state Fair Work Act 1994.

Nurse receives warning for falling asleep

Ms Geselle had undertaken a range of roles while employed by Lyell McEwin. This included roles in midwifery and intensive care. The key factors in this SA unfair dismissal case include that Ms Geselle had a long absence from work. This was due to a knee injury and mental health issues, in addition to suffering from obesity. She had made a workers’ compensation for the first two issues.

Ms Geselle tried to return to work by attempting to shed weight. She also asked the hospital if she could perform less strenuous duties. A critical event in this SA unfair dismissal case took place in April 2017. This was when Ms Geselle was placed on a performance improvement plan by the hospital. This came after she was warned for falling asleep while at work. Subsequently, Ms Geselle underwent continuous positive airway pressure (CPAP) therapy, to help remedy her tendency to fall asleep.

Ms Geselle is stood down for 14 months

Despite undergoing CPAP therapy, the hospital decided to stand down Ms Geselle in September 2017. The reason it cited for doing this was “work capacity concerns.” Crucial to this termination case was that Ms Geselle would be stood down for the next 14 months.

During this time, the hospital directed her to undergo medical examinations with an occupational physician and therapist. The hospital also received a report from a physiotherapist. Instead of being stood down, Ms Geselle asked the hospital if she could take 750 hours of accrued paid leave. Or to take leave without pay. These requests were dismissed by the hospital.

Nurse is dismissed, makes unfair dismissal claim with SA Employment Tribunal

The hospital appointed a new CEO in May 2018, who soon heard about Ms Geselle’s medical issues. It was reported by a doctor that she was unable to perform “all the inherent duties of [her] position without limitation or restriction” due to her weight issues. In November 2018, the hospital sacked Ms Geselle, citing the fact that she could not undertake her work duties due to being overweight.

She subsequently made an unfair dismissal claim with the SA Employment Tribunal. In her claim, Ms Geselle claimed that she had made complaints about colleagues who had bullied and harassed her. She argued that her dismissal was retaliation for making these complaints. The employee also cited the fact that the hospital had dismissed her request to take accrued leave to deal with her medical issues. She intended to return to work once she had sorted out these issues.

Was it an unfair dismissal? SA Employment Tribunal decides.

At the official hearing for this unfair dismissal, the SA Employment Tribunal had “unreasonably ignored” Ms Geselle’s leave request. Specifically, because she had intended to improve her work capacity while on leave. It was also found that the hospital did not try to attain medical evidence from the doctor’s that assessed Ms Geselle.

The SA Employment Tribunal also found that the hospital had made an error in determining that she was unlikely to improve her health issues. And that she could not improve enough to increase her work capacity and perform her job within 12 months.

Unfair dismissal in SA: Further findings reveal employer’s shady actions.

Most alarmingly in this case, the SA Employment Tribunal uncovered some concerning reasons why the hospital had sacked Ms Geselle. It was found that the hospital had terminated her because it wanted to avoid a workers’ compensation claim for her mental health issues.

The SA Employment Tribunal also found that the hospital withheld on purpose a second report form the physician. This report stated that Ms Geselle had the capacity to work full hours. It was also uncovered that the hospital dismissed any idea of giving her lighter duties while she was treating her conditions.

Unfair dismissal in SA: Nurse is reinstated

Delivering its final ruling on this case, the SA Employment Tribunal found that Ms Geselle had been unfairly dismissed. It was ruled that her termination was tantamount to unlawful discrimination. And that it contradicted the hospital’s own HR policy.

The SA Employment Tribunal ordered for the hospital to reinstate Ms Geselle to a nursing role in a different ward. It was ordered that she not to be placed under the management of the same divisional nursing director, as they had played a significant role in her unfair dismissal.

Unfair dismissal in SA: Teacher dismissed over “sugar daddy” remarks to student

Mr Joshua Brewer v St Columba College Munno Para Inc T/A St Columba College is an SA is a complaint that was heard by the Fair Work Commission. The case involved 50-year-old school teacher Joshua Brewer, who was sacked for his inappropriate conduct toward a year 11 student.

Mr Brewer had commenced employment at the private school St Columba College in Adelaide in 2011. For many years, Mr Brewer primarily taught students in years six to nine. A crucial event in this unfair dismissal case was that in 2018, Mr Brewer began teaching year 11 student, referred to as Student A during the Fair Work Commission proceedings.

Teacher visits students outside of school

On 14 May 2018, Mr Brewer was summarily dismissed by St Columba College for serious conduct. This was based on number of allegations made against him by Student A. She had previously levelled accusations against him 2016, but these were never proven.

Student A said that Mr Brewer intruded into her personal life by seeking her out at her workplace, a Woolworths supermarket, when she worked on weekends. She claimed that he consistently sought her checkout line, even when others had shorter queues.

The particularly unsettling conduct of Mr Brewer is a consistent theme of this case. In one incident, Student A had told him that she would be working the morning shift at Woolworths. However, her shift changed to the afternoon. Mr Brewer turned up at the store in the afternoon and proceeded to her checkout. Student A told the Fair Work Commission that “he said that he had done his big shop that morning, but had not seen me, and had come back hoping he would see me.”

“I can be your sugar daddy:” SA unfair dismissal case reveals disturbing comments

But perhaps the most unsettling incident in this claim was what happened on 8 March 2018 during the school’s sports carnival. Mr Brewer asked Student A to rake the sand used for long jump, then struck up a conversation with her. During this conversation, Mr Brewer brought up Student A’s boyfriend. She told the Fair Work Commission that he told her “He’s not nice enough for you. I can treat you better.” Mr Brewer then told Student A that “I can be your sugar daddy. I can pay you small allowances. We can drink red wine. You can give me neck massages.”

Student A alleged that Mr Brewer said that her boyfriend “was too rich” and further stated that “he could go shopping with her.” Feeling uncomfortable, the student told the Fair Work Commission that she tried to change the subject by bringing up Mr Brewer’s wife and family. He allegedly said that “They’re not important right now, you are.” Then finally, as she was raking the sand, requiring her to bend over, Mr Brewer stood near her. This made her feel even more uncomfortable.

Unfair dismissal in SA: Fair Work Commission provides decision

After considering all the evidence provided by both parties in this SA unfair dismissal case, the Fair Work Commission provided its findings. It found that the evidence provided by Mr Brewer and Student A regarding their interactions did not align factually. However, it accepted the student’s accounts, describing Mr Brewer’s conduct as “recklessly indifferent to the legitimate rights of the student.” It stated that Student A had the right “not be subject to inappropriate and intrusive conversation about her private life.”

The Fair Work Commission ruled that there was a valid reason for the dismissal. It said that Mr Brewer “crossed that line” which exists between teachers and students with respect to social discussions. And it noted that he had previously been warned about making comments to students. Mr Brewer’s conduct was seen as a “breach of his professional duty.” Based on these findings, the Fair Work Commission in SA ruled that Mr Brewer had not been unfairr.

Conclusion to: South Australia and dismissal claims

A Whole New Approach is known across Australia as the nation’s leading workplace mediators and commentators. We are not lawyers. We have helped thousands of employees to make claims in SA, along with every other state and territory.

Whether you need to make a claim with the Fair Work Commission or the SA Employment Tribunal, we can help. We offer a no win, no fee service. And your initial consultation with us is free and confidential. Serious misconduct issues workplace investigations call us immediatly

Contact us today at 1800 333 666 for a free and confidential discussion about your situation.

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