Difference Between Unfair Dismissal and Wrongful Dismissal

If you are dismissed from your job but you believe your dismissal case to be wrongful or unfair, you may be entitled to file a claim against your employer. But what is the difference between the two and what can you hope to gain if you file? Continue reading to learn about the distinctions as well as the solutions accessible to you.

What Constitutes an Unfair Dismissal?

A person has been wrongfully terminated under the Fair Work Act 2009 if their dismissal was:

• Punitive, unfair, or irrational, such as:
  • The employee was fired for no apparent cause.
  • The reason was not communicated to the employee; or
  • The employee was not given a chance to respond to the rationale.
• Inconsistent with the Small Businesses Fair Dismissal Code 
• Not a genuine redundancy situation

What Constitutes a Wrongful Dismissal?

Under common law, wrongful dismissal refers to a breach of an employment contract where the employer did not conduct themselves according to the legally binding document.

Making a Claim for Wrongful Dismissal

To file a claim for unfair dismissal compensation, you must submit documentation to the Commission within 21 days after the dismissal’s effective date. If your claim is successful, you have two options for compensation:

• Reinstatement

The Commission can provide this as a solution in an unjust dismissal case. An employer’s main objection to a reinstatement or restoration Order is that the relationship between the employer and the employee has ended. However, the employer’s statement alone may not be adequate.

• Monetary Compensation 

If reinstatement is not possible, you may be entitled to monetary compensation for unjust dismissal. The entire amount of compensation is based on work duration during the 26 weeks immediately before the dismissal, according to Section 392 (6) of the Act.

When filing for workers’ compensation, keep in mind that it cannot be used to compensate for shock or humiliation caused by the dismissal (Section 392(4) of the Act).

Making a Claim for Wrongful Termination

Because there are some significant variations between unjust and wrongful dismissal, the compensation is likewise different. There are two options for filing a wrongful dismissal compensation claim:

• Loss and Damage Compensation

This is often regarded as the most effective remedy for wrongful termination. The goal of compensating an aggrieved party is to put them in the same situation as if the contract had been fulfilled according to its terms. Damages may be granted in the event of the loss of the following:

• Superannuation;
• Wages and other forms of compensation;
• Injuries sustained as a result of the alleged termination; or
• Loss of opportunities for further employment. 

• Contractual Performance in Detail

The courts seldom award specific fulfillment of an employment contract. The courts are hesitant to force unhappy parties to stay in an employment arrangement, which is why such awards are uncommon. However, in exceptional circumstances, a court may reinstate an employee for a specified purpose.

Conclusion 

While these words are sometimes used interchangeably, unfair and unlawful dismissal differs regarding definition and compensation. If you are currently facing termination of employment, it is essential to consult with a lawyer to learn more about your claims and rights.

To lodge a claim at the Fair Work Commission the forms are different for the various categories of claims, its important you lodge the right form, many claims do not succeed, due to simply the wrong form lodged and due to the strictly enforced 21 day time limit there is no second chance to lodge a different form. Do your research, and get advice, that’s what we are here for.

If you are looking for a representative that handles unfair dismissal claims in Melbourne, look no further than our expertise and advice here at A Whole New Approach. We are a company that represents employees against unfair, unlawful dismissal, discrimination, bullying, & work harassment. Contact us today and let us discuss all your available options.

We are A Whole New Approach P/L, we are not employment lawyers, but the nation’s leaders in advocacy, representation, commentary, and research relating to all matters in the workplace. Have a question, or want to discuss a topic, give us a call on 1300 766 700. 

By Gary Pinchen.