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

You can make a claim for wrongful dismissal against your employer under the Common Law, in the event of termination of your employment contract. Whereas 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 of expert unfair dismissal lawyers in Sydney can help you navigate the different types of dismissals.

Differences between a Wrongful Dismissal and an Unfair Dismissal

The differences between the unfair dismissal and wrongful dismissal are outlined below:

Remedies

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 assertion made by the employer may not be sufficient.
  • Monetary compensation: An Order for the payment of 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 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 help with the two major remedies available for wrongful dismissal:

Compensation for loss and damage: It 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.

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 expert advice, feel free to speak to the unfair dismissal lawyers and wrongful termination lawyers at Owen Hodge.

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Employment Contracts & Awards
What to Consider When Hiring a Contractor
Workplace Rights and Adverse Action
Wrongful Dismissal Vs Unfair Dismissal
Executive Employment Agreements rather then Employment Law
Breach Of Employment Contract / Wrongful Dismissal
Breach Of Fiduciary Duties
Changes to Parental Leave
Disciplinary Matters – Deceptive And Misleading Conduct
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Employment Rights – Termination Of Employment
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Sexual Harassment Laws

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Minimum Wage
Paid Parental Leave
Public Sector Employees
Redundancy & Redundancy Pay
Redundancy of Executive Employees
Restraint of Trade
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Surveillance in the Workplace
Terminating Employment Contracts
Think twice before Dismissing Employees on Workers’ Compensation
Unfair Dismissal – Not Covered By An Award
When Competitors Steal Staff There Are Legal Consequences
Work Place Safety

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