Difference Between An Unfair And Wrongful Termination

December 14, 2022    Employment Lawyers
Difference Between An Unfair And Wrongful Termination

An employee reserves the right to terminate an employee’s work contract if they cause financial or goodwill damage to the company or the business. Misbehaving with a colleague, using company properties for personal gain, leaking any corporate secret to the competitor, and many other reasons can compel the employer to sack the offender worker.


However, suppose the worker feels or has evidence that their termination is against the law. In that case, they can apply to the proper legal authority for justice and get compensation from their employers. However, they should consult with skilled and experienced employment lawyers Perth WA to ensure appropriate representation of their cases.


Dismissal: A Hard Step


Dismissal is when the company or the management has decided to terminate an employee’s job: if it’s the other way around, it is resignation. However, suppose there is no other way but to dismiss an employee. In that case, one must complete it as per the employment laws or after consulting with a registered employment lawyer in your locality.


Some of the accepted grounds for dismissal an employer can adopt are listed below:

  • Poor show
  • Bad and unacceptable behaviour
  • Dangerous behaviour
  • Refusal to follow instructions that result in financial or non-financial loss.
  • Redundancy or retrenchment (No further need for the position).


However, the last point about fair dismissal will fall into an unfair dismissal Perth if the employer sacks an employee after making their position redundant but hires another employee to perform the same duties after. If one can prove that the new employee is somehow related to the individual with the hiring or dismissing authority or the new employee is working on a lesser wage – then it will be a confirmed case of unlawful termination.


Upon the dismissal, the employee will no longer be considered that company’s worker and their employment is concluded at that company. The primary employer or representative, such as a manager, will officially terminate the employee from the office, company, or workplace.


Incidentally, if the company or the employer violated the employee’s right during termination, the worker can claim compensation legally. There are two primary illegal dismissal types: prejudiced dismissal and wrongful dismissal.


What Is Unfair Dismissal?


If an employee is dismissed from their job role in a cruel, undeserved, or irrational manner, one can register a case of unfair dismissal Australia. As said earlier, lying about reducing a post to fire an existing employee but continuing the same post will constitute a case of unfair dismissal.


When a particular employee is dismissed from his or her job role harshly, unjustly or unreasonably, that’s the time when unfair dismissal occurs. When a release was not an actual or genuine redundancy case, it may also be touted as unfair dismissal. If the employee is employed by a small business, the discharge must be in tandem with the ‘Small Business Fair Dismissal Code’. Otherwise, this can also be regarded as unfair dismissal.


The Process Of Fighting An Unfair Dismissal


After an employee feels that they have been unfairly dismissed, they have to apply to the Fair Work Commission (FWC), the authorized body for hearing and determining unfair dismissal cases. The terminated worker has a maximum of 21 days to apply to the FWC from the date they have been dismissed.


Incidentally, the council won’t carry on an investigation of the claims’ circumstances– the what, why, and how it happened. The dismissed employee has to collect and prove to FWC the unfairness of their dismissal. It is better to take the help of the most experienced employment lawyers in Perth, who can assist in the whole process and help the applicant with the finer points.


The FWC will set up a questionnaire to determine the eligibility of a case for considering unfair dismissal cases. However, the primary condition for your selection is the length of your employment – a company must employ you for at least six months and a minimum of 12 months for small businesses to be qualified to complain to FWC.


What Are The Judgments?


If your unfair dismissal lawyer can prove you are innocent in the sacking, and the company is at fault, the FWC can offer the following awards to you under the Fair Work Act 2009, as follows:

  • Financial compensation (more than 26 weeks’ pay)
  • Reinstatement or getting the old job back.
  • Other non-financial awards.


Wrongful Dismissal – Characterization


Usually, every employee entering a company to work for them gets a contract stating the conditions to work at the company and their remuneration. If the worker is terminated from their job that breaches their employment contract’ terms, then the knowledgeable unfair dismissal lawyers mark it as a case of wrongful dismissal. Compared to an unfair termination case, it follows the conditions of Common Law.


The Process, In Short


If the employee feels that they have been wrongfully terminated, they must file a case against the appropriate authority in the general Court of law. The Australian legislature doesn’t constitute any specific bodies for these cases and doesn’t require a minimum employment period.


However, a wrongful dismissal claim can be expensive and time-consuming. Therefore, involving the most skilled and practised lawyers in this matter is better. Also, some unfair dismissal solicitor businesses recommend going for an unfair dismissal application to the FWC.


What Will The Employee Get If They Win?


The claimant can assert damages in case of wrongful termination. Usually, employment contracts include a mentioned period for termination notices, so the offered remedy needs to be equivalent to this period. In most cases, the damages are specified in the contract. However, if it isn’t, the Court will decide the amount of financial compensation the worker will get or the period depicted as reasonable under the circumstances. Reinstatement or specific performance of the contract is extremely rare for a Court to order.


Therefore, an ex-employee filing an objectionable dismissal case against their former proprietor must take the help of the most experienced and skilled lawyers. The most prevalent concern employing unfair dismissal lawyers Perth will provide legal services for wrongful dismissal cases, too – and it will also assist in making an appropriate claim.

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