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:
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.