Wrongful vs unfair dismissal


Have you or someone you know been let go from a job? Do you feel it was inappropriate or things weren’t done by the book? Many people don’t know where to turn because there is an overload of information out there, especially in the media.

It is a common misconception that unfair and wrongful dismissals are the same thing. But they are not and understanding the difference can be complicated. It is important to understand your employment rights and the options available to you.

What is the difference?

Unfair dismissal applications are a complex area of the law. A claim can be made when an employee is dismissed from their job in a harsh, unjust or unreasonable way.

While, a wrongful dismissal involves breaking the terms of a contract. For example, if an employer terminates an employee without adhering to the notice period or terminates a fixed term contract before the end.

Unfair dismissals are the most common claims that go through the litigation process, but it is important to know how it differs from a wrongful claim.

As a result of the COVID-19 pandemic, unfair dismissal applications to the Fair Work Commission skyrocketed. In 2020, unfair dismissal applications to the Commission increased by more than 40 per cent. In fact, 45 per cent of all applications to the Commission are unfair dismissals.

The Commission will consider whether the employee was given warnings and whether the employee was given an opportunity to improve performance. A common example of an unfair dismissal application is where an employee is fired for poor performance without being given a warning.

Employees can make a claim for unfair dismissal if they’ve worked a minimum of six months for that company. This is extended to a year if your employer is a small business. You must apply to the Fair Work Commission within 21 days of the dismissal taking place. An employee can also ask for their employment to be reinstated.

It’s important to distinguish that there is no minimum length of service an employee must meet to bring a wrongful termination claim, and the strict 21-day time frame doesn’t apply either.

The ABC’s former managing director Michelle Guthrie was sacked halfway through her 5-year contract in 2018 and pursued the public broadcaster for wrongful dismissal in the Federal Court. She received $730,000 in the settlement. Guthrie was also paid more than one year’s salary, bringing the total payment to $1.64 million.

It is worth mentioning that an employer can dismiss a worker without any notice if the employee is involved in serious misconduct including theft, fraud, safety breaches or violence.

How can a solicitor help?

Solicitors can advise both sides of the dismissal application; an employer and an employee. They can provide information on your entitlements, what the process is to minimise any major risks and suggesting alternatives.