In the event of a termination of employment, you may be able to make a claim for wrongful or unfair dismissal against your employer. But, what is the difference between unfair dismissal and wrongful dismissal? Read on to learn the basic differences and the remedies available to you.

Our team has some of the most experienced unfair dismissal lawyers Sydney has to offer. Let us help you navigate the different types of dismissals. We’re well equipped to assess your unfair dismissal claims and seek wrongful or unfair dismissal compensation on your behalf.

So, is wrongful dismissal the same as unfair dismissal? While these terms are often used interchangeably, there are some key differences between unfair dismissal and wrongful dismissal – which we will outline below.

According to the Fair Work Act 2009, a person has been unfairly dismissed if their dismissal was:

  • Harsh, unjust or unreasonable, such as:
    • The employee was terminated without a valid reason
    • The employee was not notified of that reason; or
    • The employee wasn’t given an opportunity to respond to the reason
  • Not consistent with the Small Business Fair Dismissal Code
  • Not a case of genuine redundancy

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A wrongful dismissal refers specifically to a breach of employment contract under the common law.

You can also see the key differences between unfair dismissal and wrongful dismissal in the table below.

a table showing the key differences between unfair dismissal and wrongful dismissal

Claiming for unfair dismissal

To make a claim for unfair dismissal compensation, you are required to make an application to the Commission within 21 days after the dismissal takes effect. If successful in your claim, there are two remedies available:

1. Reinstatement

This can be issued by the Commission as a remedy in an unfair dismissal matter. Generally, the bone of contention by an employer against a reinstatement or restoration Order is that the relationship between the employer and employee has extinguished. However, such an assertion made by the employer may not be sufficient.

2. Monetary compensation

If reinstatement is not appropriate, you can receive a payout for unfair dismissal. Section 392 (6) of the Act confers that the total amount of compensation relates to any period of employment with the employer during the 26 weeks immediately before the dismissal.

One should also be mindful while applying for workers compensation that it cannot be awarded for shock, distress or humiliation caused by the manner of the dismissal (Section 392(4) of the Act).

Claiming for wrongful dismissal

Since there are some key differences between unfair dismissal and wrongful dismissal, the compensation is also different. When making a compensation claim for wrongful dismissal, there are two remedies:

1. Compensation for loss and damage

This is considered to be the most effectives remedy for wrongful dismissal. The intention of giving compensation is to put the injured party in the same position as if the contract had been performed according to its terms. Damages can be awarded for loss of the following:

  • Wages and other remuneration;
  • Superannuation;
  • Injuries suffered because of the supposed termination; or
  • Loss of opportunity to obtain further employment.

2. Specific performance of the contract

Specific performance of an employment contract is rarely awarded by the courts. The reason behind such rare awards is that the courts are reluctant to force unwilling parties to continue in an employment relationship. However, there can be special occasions where a court reinstates an employee if there’s a specific reason.

Seek help from Owen Hodge’s unfair & wrongful dismissal lawyers

If you believe you have been unfairly dismissed from employment and want to seek compensation, speak to the employment lawyers at Owen Hodge. You can also turn to our expert lawyers for any questions about NSW unfair dismissal rights, wrongful termination or the differences between unfair dismissal and wrongful dismissal.

Unfair dismissal & wrongful dismissal FAQ

No, you cannot claim for both wrongful and unfair dismissal as they are not interchangeable.

You cannot terminate an employee without warning. By doing so, the employee will be able to make a claim that they have been unfairly dismissed.

When can I claim wrongful dismissal?

With the exception of independent contractors, employees can make a claim against an action of unfair dismissal if they’ve worked the minimum employment period. This minimum period is six months in most cases, however it can be a year if it is a small business.

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