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HR Tip: Unfair and wrongful dismissal


These questions are being answered by Learn HR, a market leader in the provision of HR and payroll training and nationally-recognised professional qualifications.

Question: "Are unfair dismissal and wrongful dismissal the same thing? We tend to use the terms interchangeably."

HR Tip: They are quite different. Unfair dismissal relates to the "why?", the reason for dismissal. Dismissal is unfair unless it is for misconduct, incapability, redundancy, breach of a statute, retirement or some other substantial reason, and has been carried out properly.

In most cases employees need one year of service in order to bring a claim for unfair dismissal. Wrongful dismissal relates to the "how?", the way the dismissal was carried out. Unless dismissal was for gross misconduct or breach of a statute demanding immediate dismissal such as the Asylum and Immigration Act, the employee should be given due notice.

If this is not done or the contractual provisions of the contract are not maintained during the notice period, the employer would be in breach of contract. Usually this is called wrongful dismissal for which there is no service requirement.

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