The Difference Between an Unfair Dismissal and a Wrongful Dismissal

Job security may as well be part of one’s basic needs because it is essential to provide food, clothing and shelter. As a company, manpower is vital to keep your company or organisation alive. Likewise, employees need jobs as a source of income whether it is short-term or long-term.

It’s clear that jobs play a vital role to live and survive daily. However, employees are also at risk of redundancies due to different circumstances. With this in mind, both companies and employees must be aware that dismissals are not always right. In fact, there are unfair dismissals and wrongful dismissals.

At Close Consulting, we are here to help you better understand what unfair dismissal and wrongful dismissal are, and what help we can offer if you think your termination falls under either of them. But before we get into that, let’s take a closer look at the difference between the two.

Defining Dismissals

Dismissals happen when a company ends or terminates an employee from their job or position. They are more commonly associated to be the result of conflict in the workplace or breach of employment agreement. One can also be dismissed if the company has encountered significant losses and must scale down or even declare bankruptcy.

As a company, letting go of an employee is never an easy decision to make, and it isn’t something that’s just done on a whim. It requires time for proper evaluation and processing to ensure that the right conditions are met, and to avoid any legal repercussions. Thus, knowing the Fair Work Commission’s guidelines is advantageous.

Similarly, employees must also be familiar with their worker rights and entitlements to avoid being dismissed unfairly or wrongfully. If you feel that you have been unfairly or wrongfully dismissed, you may file for claims and hold your former company accountable.

What is Unfair Dismissal?

The Fair Work Commission states that letting go of an employee does not always mean they have been dismissed. Among the examples they cited are when: an employee resigns from their job, their employment contract ends, they have completed the task they were hired to do, and if they were only a seasonal hire and the season has already concluded. If these are not the case, what exactly makes for an unfair dismissal?

A dismissal is considered as unfair if they meet the following criteria:

Harsh. A dismissal is harsh when it seems to be an overly severe punishment for something small or minor. In other words, the crime or mistake committed by the employee lacks the gravity to warrant dismissal from work. Another punishment could have been given or the employee could have been sanctioned differently rather than being let go.

Unjust. Dismissing an employee can also be rooted in unfair treatment, bias, or even discrimination. It can be seen as a form of bullying or harassment in the workplace, or there is an imbalance in power dynamics between superior and junior employees. It is also unjust when there is discrimination based on age, gender, ethnicity, and religious beliefs, among others.

Unreasonable. A dismissal can also be considered as unfair if it simply does not make sense, or no valid reason was given to the employee. This happens when an employee has not been given the opportunity to respond to the allegations and defend themselves. There is a clear lack of due process, and no investigation was conducted on the part of the company.

If any of these conditions are met, a former employee can file for an unfair dismissal at the Fair Work Commission, and will undergo a formal investigation.

What is Wrongful Dismissal?

A wrongful dismissal is all about the technicalities and specific stipulations that have been violated by the company. This mainly concerns the contractual obligations of a company to an employee, which are all under the employment agreement that both parties had signed during the  pre-employment phase.

An employee’s dismissal is considered wrongful when they happen under any of the following conditions:

Premature Termination. Contractual or seasonal jobs employ workers for only a limited time. This is specifically and explicitly mentioned in the employment agreement to ensure that both the company and employee are aware of the duration of when the work starts and ends. If the work is completed ahead of the specified contract expiry date or the season has already ended, this is not considered as a wrongful dismissal.

What is considered wrongful is when a company dismisses an employee prior to the completion of work or before their contract ends. It is the company’s responsibility to honor its agreement with the employee and fulfill the contract until the last day.

Immediate or Early Dismissal. When an employee resigns, they need to render a specific number of days after submitting their resignation as part of the turnover process. This is to ensure a seamless way of separating from the company, and provide them ample time to look for a replacement. The similar principle applies when letting go of an employee.

A company must issue a notice of dismissal to also give the employee ample time to look for another job while working on their turnover. However, it is wrongful to dismiss an employee effective immediately or less than the notice period that is stipulated in the employment agreement. If the agreement says that a four-week notice is required prior to termination, employers must follow it, and anything less will be considered wrongful.

Absence of Due Process. In any conflict, it is imperative to conduct an investigation and hear out the parties involved. This will help the company determine what steps need to be taken to resolve the issue, and if it is employee dismissal, then the right process must be followed.

In the event of an alleged misconduct, it is wrongful to dismiss an employee without hearing their side or giving them the chance to defend themselves. The absence of due process is a breach of employment agreement, as the involved employee loses his or her chance for a smooth turnover to their next job, or at least a chance to exit the company properly.

Should a former employee be dismissed with any of the aforementioned conditions, they are also qualified to file for unfair dismissal with the Fair Work Commission.

Important Reminder

Every employee must know that should they be dismissed unfairly, they already have a clock on their backs, so asking for help at the earliest possible time is key. They have 21 days from the day they were dismissed to lodge an unfair dismissal claim with the Fair Work Commission.

This three-week period is essential to both the company and the employee. It can be used to prepare for any legal proceedings once the Fair Work Commission deems the case valid and worth investigating.

Consult With Us

For employees who believe they have been unfairly or wrongfully dismissed from work, Close Consulting offers a free consultation where you can share your story. During this session, we’ll  listen and provide advice on whether you have a chance to file for a claim at the Fair Work Commission.

During the consultation, we would need to know the duration of your employment and your duties and responsibilities. It would be helpful if you can provide us with your employment agreement so we can review all the stipulations, and what information is useful to your case. 

Most importantly, it’s crucial that you share with us what happened on the day of your dismissal – who spoke with you from the company, the advice they gave you, the date it happened, and if possible, the reason behind your dismissal. These details are essential as this would determine if the actions taken by the company were “harsh, unjust, and unreasonable.”

At this point, our team of unfair dismissal experts will assess your case and assist you when formally lodging the complaint at the Fair Work Commission. We will take care of the forms and documents, and be your legal counsel for all the proceedings moving forward. This includes representation during negotiations and court proceedings, if applicable.

We at Close Consulting understand the difficulties and challenges that come with losing a job, especially when it is sudden and immediate. We are committed to ensuring that your case gets heard by the Commission and that you get the claim you deserve so that you can start a new chapter of your career without worries. 

Do you think you have been unfairly dismissed? Consult with us and tell us your story. Call us at (03) 9211 9944 or send us an email at admin@closeconsulting.biz. You can also reach us through our website. We’ll help you lawyer up and get your claim!