What is Unfair Dismissal or Wrongful Dismissal?

The law in regard to Unfair Dismissal depends in which legal jurisdiction it occurs (i.e. which nation it occurs).

Here is a brief on the laws in the United Kingdom, Australia, United States and Canada. You will need to check on laws in your own legal jurisdiction if you do not live in these nations. This information is supplied purely to give some background information on what is meant by unfair dismissal or wrongful dismissal and does not constitute legal advice.

Law on Unfair Dismissal in United Kingdom

Employees have the right NOT to be unfairly dismissed. However an employee who believes they have been unfairly dismissed can only make a complaint to an employment tribunal if they qualify. The must have:

However, there is no length of service requirement in relation to 'automatically unfair grounds'. Dismissals are classed as 'automatically unfair' if an employee is exercising specific rights to do with pregnancy, family reasons (e.g. parental leave), representation (e.g. as a trade union member) and discrimination

Law on Unfair Dismissal in Australia

An unfair dismissal occurs where an employee makes an unfair dismissal remedy application and Fair Work Australia finds that:

Not everyone is able to make a claim for unfair dismissal. The following table shows that public sector and local government employees in many states are not able to claim.

ACT All employees
New South Wales All employees except state public sector and local government employees
Northern Territory All employees
Queensland All employees except state public sector and local government employees
South Australia All employees except state public sector and local government employees
Tasmania All employees except state public sector employees
Victoria All employees
Western Australia

All employees except:

  • state public sector employees
  • employees working for non-constitutional corporations (e.g. sole traders, trusts and partnerships) in the private sector
  • employees working for non-constitutional corporations in local government.

Employees wishing to make an unfair dismissal claim must also fulfil the following conditions:

The last point is important as employees have on 14 days to lodge a claim.

For further information about Unfair Dismissal in Australia go to the Fair Work Australia website

Law on Wrongful Dismissal in United States

In the United States, unfair dismissal is replaced by the term "wrongful dismissal" which occurs if an employer is found to have dismissed an employee due to:

Most of the states in the United States are "at-will" employment states. if a person is an "at-will" employee they can be fired unexpectedly, with no notice and for any reason. A person is NOT an "ar-will" employee if they have a contract of employment which states a period of notice and the manner in which termination of employment must be handled.

Law on Wrongful Dismissal in Canada

In Canadian Common Law, if a person does not have a written employment contract or has a written contract that does not contain any clause about termination procedure, then the law implies that employment will not be terminated without "reasonable notice".

However, an employer is entitled to dismiss an employee without providing any notice if the employee's behaviour constitutes a fundamental breach of the employment contract. The following employee behaviour/attributes may constitute grounds for dismissal without notice:

  1. Failure to adequately perform duties;
  2. Lack of qualifications for position;
  3. Tardiness;
  4. Time missed from work;
  5. Frustration of the contract of employment due to disability;
  6. Insubordination;
  7. Theft;
  8. Failure to follow instructions;
  9. Incompetence.

An employee who suffers dismissal with no notice given and without sufficient justification, may be able to claim monetary damages in an amount that compensates the employee for loss of earning that would have earned or received during the lawful notice period, minus earnings from new employment obtained during the lawful notice period.

In Canadian employment law, it has long been the rule that reinstatement is not a remedy available to either the employer or the employee - damages must be paid instead.



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