This article will give you an insight into the basic differences between a wrongful dismissal and unfair dismissal.

In the event of termination of your employment contract, you can make a claim for wrongful dismissal against your employer under the Common Law. However, unfair dismissal laws are slightly different. Unfair dismissal describes a right of action that you may have under the Fair Work Act 2009 (Cth) (the Act) or under similar State legislation.

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 unfair dismissal compensation on your behalf.

Differences between a Wrongful Dismissal and an Unfair Dismissal

The differences between the unfair dismissal and wrongful dismissal are outlined below. The main quality of an unfair dismissal is that it is found to be harsh, unjust or unreasonable. By contrast, wrongful dismissal concerns breach of employment contract or Common Law:

Table comparing wrongful dismissal with unfair dismissal laws


In order to avail remedies under unfair dismissal, you are required to make an application to the Commission within 21 days after the dismissal takes effect.

Sections 390 – 393 of the Act confer the remedies available for an employee, when such person has been unfairly dismissed.

The main remedies for unfair dismissal are:

  • Reinstatement: It 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.
  • Monetary compensation: An Order for the payment of unfair dismissal compensation to an employee must be in lieu of reinstatement. Section 392 (6) confers that the total amount of remuneration 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).

Unfair dismissal lawyers can also help with the two major remedies available for wrongful dismissal

1. Compensation for loss and damage

This is considered to be the most efficacious 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 seldom awards is that the Courts are also reluctant to force unwilling parties to continue in an employment relationship. However, there can be special occasions where a Court reinstates an employee, if they have a special position.

For advice and help with your unfair dismissal application, speak to our experts in unfair dismissal laws and wrongful termination here at Owen Hodge. Our employment lawyers are happy to help. If you’re looking for the law firm Sydney residents trust, look no further.

Employment Rights – Termination Of Employment
Terminating Employment Contracts
Think twice before Dismissing Employees on Workers’ Compensation
Unfair Dismissal – Not Covered By An Award

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