Losing your job can be a very stressful time, especially if you didn’t see it coming. If you feel your dismissal was in breach of the terms of your contract or you weren’t provided valid reasoning, you may have a claim you can put forward.
Depending on your circumstances, your case may constitute as either ‘wrongful dismissal’ or ‘unfair dismissal’. To help you understand, here we have outlined the key differences between the two:
What is Wrongful Dismissal?
Wrongful dismissal is when the employer terminates an employee in breach of their employment contract under the common law. Wrongful dismissal occurs when an employer:
- Gives inadequate notice or no notice at all without reasoning
- Terminates an employee before completion of a fixed term contract
- Terminates an employee on the basis of severe misconduct without giving time to justify
The remedy for a breach in contract is most often compensation. Usually there is little opportunity for reinstatement of employment because of loss of trust between the employer and employee. However, compensation may be awarded for the loss of the following:
- Wages and other remuneration
- Superannuation
- Injuries suffered because of the termination
- Loss of opportunity to obtain further employment
There is no length of service you needed to have worked for making a claim for wrongful dismissal. However, actioning a wrongful dismissal often requires going to court which can be costly for a dismissed employee. Instead, many employees can apply for unfair dismissal with the Fair Work Commission which tends to be less time consuming and expensive.
What is Unfair Dismissal?
According to the Fair Work Act 2009 (FWA), unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. Unfair dismissal occurs when an employer:
- Dismisses an employee without a valid reason
- Terminates an employee due to poor performance without opportunity to improve
- Terminates an employee based on misconduct they did not commit
- Claims a disingenuous redundancy
- Does not follow due process of the termination
Unfair dismissal is determined by the Fair Work Commission. They will not just look at whether your termination was consistent with your employment contact but also whether it was fair.
The remedies for unfair dismissal are:
- Reinstatement at work or
- Monetary compensation (capped at 26 weeks’ pay)
To make a claim for unfair dismissal, you must ensure you have worked the minimum period of employment of either 6-12 months (depending on the business size), and that you apply within 21 days of the dismissal becoming effective.
Lodging a Claim
Lodging a dismissal claim can be done directly through the Fair Work Commission. However, unfair dismissal can involve difficult legal matters which can be stressful to manage without help from an expert.
If you believe you have been subject to an unfair dismissal, our dedicated and experienced lawyers at Le Brun & Associates can help you to have a clearer understanding of unfair dismissal procedures and the best course of action to follow.
We understand being dismissed is a challenging time. If you would like to receive advice or more information on unfair dismissals, you can contact us to discuss your needs during a free 30 minute consultation.