There are many circumstances where an employer may inappropriately dismiss an employee. In such cases, the employee may seek to make a claim against the employer. It can be difficult to determine which claim you should make: unfair or wrongful dismissal? To understand the distinction between these two claims, read on.
What is unfair dismissal?
Unfair dismissal occurs when an employee is dismissed from their role in a harsh, unjust or unreasonable manner. When a dismissal was not a genuine case of redundancy, this may also constitute an unfair dismissal. If employed by a small business, the dismissal must adhere to the Small Business Fair Dismissal Code. Otherwise, this is likely to also be a case of unfair dismissal.
What can I do if I have been unfairly dismissed?
The Fair Work Commission hears and determines cases of unfair dismissal. Individuals have 21 days to apply to the Commission. This time period starts the day after the dismissal. The Commission will not investigate the circumstances of your claim. Rather, you must provide evidence to the Commission that proves your dismissal was unfair. To assist in this process, Lawpath can help connect you with the right unfair dismissal lawyer.
The Commission has set up an unfair dismissal eligibility quiz which can help individuals understand whether or not they are eligible to make a claim. A key determinant of eligibility is length of employment:
- You must have been employed for a minimum period of 6 months
- If you were working for a small business, you must have been employed for at least 12 months
What remedies are available?
If a Commission Member decides that you were indeed unfairly dismissed, there will be a few remedies available to you. Under the Fair Work Act 2009, these remedies may include:
- Reinstatement (returning to your job)
- Monetary compensation (no more than 26 weeks’ pay)
- Non-financial remedies
What is wrongful dismissal?
Wrongful dismissal occurs when an employee has been dismissed from their role in breach of the terms of their employment contract. In contrast to unfair dismissal, wrongful dismissal is a claim made under the Common Law.
What can I do if I have been wrongfully dismissed?
You will have to go to court for your wrongful dismissal claim to be heard. There is no length of employment requirement for a claim of wrongful dismissal. Lawpath will happily connect you with a wrongful termination lawyer to help you make your case.
Making a claim for wrongful dismissal can be an expensive and time-consuming process. Therefore, when possible, it is often more preferable to bring an unfair dismissal application to the Fair Work Commission.
What remedies are available?
The remedy for wrongful dismissal is damages. As most employment contracts include a set period for termination notice, damages may be equivalent to this time period. Where an employment contract does not provide for notice, the Court will make a decision as to what is reasonable notice in the given circumstances. It is extremely rare that a Court will order reinstatement or specific performance of the contract.
It is therefore imperative that an ex-employee, who is seeking to make a claim against their former employee, understands the differences between unfair and wrongful dismissal. The process for making a claim varies significantly, and so too do the remedies.
