As an employer, you will sometimes need to make the tough decision to let one of your employees go. When this scenario arises, it’s extremely important to make sure your actions are in compliance with employment laws. 

If a former employee feels they have been dismissed in a way that was unfair or wrongful, they have the right to bring forward a claim against your business. Unfair and wrongful dismissal claims can be detrimental to a business, especially when they are found to be valid. 

It’s best to consult an Employment Lawyer, gather the correct information and take the right steps when dismissing someone in order to avoid giving former employees a reason to file a complaint. 

What Is Dismissal?

Dismissal is essentially terminating an employee. When someone is dismissed, their employment with their place of work is terminated and they can no longer be considered an employee there. 

A person is usually terminated by their employer or someone acting on behalf of them, such as a manager. 

Dismissal becomes problematic when an employer violates an employee’s rights when ending their employment. There are two main types of dismissals that are considered illegal: unfair dismissal and wrongful dismissal.  

Difference Between Unfair Dismissal And Wrongful Dismissal

According to the Fair Work Commission, unfair dismissal occurs when an employee is let go in a fashion that was unnecessarily harsh or unjust. 

In addition to this, if there is no evidence of genuine redundancy, then unfair dismissal can also apply. Unfair dismissal claims need to be made within 21 days of it happening. 

On the other hand, wrongful dismissals have more to do with contractual terms. If the way an employee was let go from their job violated their Employment Agreement, then it is likely to be considered an wrongful dismissal. 

Unfair dismissal and wrongful dismissal cannot apply in circumstances where an employee has acted illegally. In these cases, employers have the right to dismiss their employees. 

Grounds For Wrongful Dismissal

As we stated, an employee cannot be dismissed from their job in a manner that violates their contract of employment under common law. 

A former employee can have grounds for claiming wonderful dismissal when: 

  • An employee has been terminated before their employment contract ends
  • Upon dismissing the employee, the employer did not provide them with the necessary notice in a timely manner 
  • The employee was dismissed based on misconduct, however, they were not given a chance to defend their actions 
Terry has been an employee at a restaurant for the last two years. As a permanent employee, Terry has a contract that states her potential dismissal must give her 4 weeks notice in writing. 

Instead, Terry’s manager lets her know at the end of her shift they will be letting her go and her final day will be two weeks from now. Terry has been wrongfully dismissed due to a breach of contractual terms. 

Unfair Dismissal Scenarios

Unfair dismissal is defined broadly. Many acts can be considered to be unreasonable, harsh or unjust. 

As unfair dismissal can occur in various different ways. As such, the definition needs to be able to hold the evolving circumstances where unfair dismissal can be interpreted, such as the Uber Eats unfair dismissal case.

 Let’s take a look at some scenarios where unfair dismissal can occur. 

Calvin is currently employed at a clothing store as a sales representative. One afternoon during closing time, Calvin’s manager finds the register is short of money and accuses Calvin of stealing, firing him immediately.  

Without a proper investigation or giving Calving a chance to respond to the allegations, Calvin’s manager has likely dismissed Calvin unfairly. 
Jo works at a facility that provides healthcare. Due to the strict work health and safety policies their industry must follow, there are certain requirements for cleanliness and protective gear that Jo needs to adhere to at all times. 

Jo has a tendency to skip these steps before she attends to patients, such as not thoroughly washing her hands, forgetting to wear gloves and disinfecting gear the incorrect way. Jo has been given multiple warnings, training sessions and talks with HR but refused to improve her practices. As a result, she was handed a notice of termination. 

It is unlikely that Jo was dismissed unfairly. 

It’s important to note that for employers that are running a small business (less than 15 employees), the Small Business Fair Dismissal Code applies. According to the code, an employee cannot claim unfair dismissal if: 

  • The employer has complied by the code
  • The employee has worked there for less than 12 months 

Need Employment Law Advice?

Letting an employee go be a delicate matter to handle, so it’s better to have the guidance of a Specialist Employment Lawyer to make sure you’re doing everything the right way. To summarise what we’ve discussed: 

  • If an employee is terminated in a way that is not legal, it can be considered either wrongful dismissal or unfair dismissal 
  • Unfair dismal is firing an employee for unjust, unreasonable or unnecessary causes
  • Unfair dismissal claims need to be made to Fair Work Australia within 21 days of the dismissal occuring
  • Wrongful dismissal is when an employee’s termination breaches their employment contract 
  • Small business should follow the Small Business Fair Dismissal Code to benefit from it 

If you would like a consultation on wrongful or unfair dismissal, or terminating employees generally, check out our Employee Termination package. Alternatively, you can reach us at 1800 730 617 or for a free, no-obligations chat.

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