Wrongful dismissal

Wrongful dismissal occurs when an employer terminates an employee in breach of of their contract. If this has happened to you, then there are a number of possible solutions that Maurice Blackburn can help you achieve, including seeking damages, or even reinstatement. In some cases it is also appropriate for an injunction to be sought to restrain the termination.

Wrongful dismissal is different to unfair dismissal. Wrongful dismissal involves a breach of the employment contract and is a matter of common law. There are two major remedies for wrongful dismissal - specific performance of the contract (which requires the parties to abide by the contract) and, more usually, compensation for loss and damage. If you have experienced or are currently facing wrongful dismissal, Maurice Blackburn will secure the best outcome for you.

Talk to one of our executive employment experts today about how we can help. 

Maurice Blackburn can protect your rights

Compensation is the most common remedy for wrongful dismissal. The purpose of compensation is to put the injured party in the same position as if the contract had been performed according to its terms. Damages may be awarded for loss of present or future income, including salaries, commissions, bonuses, profit sharing and other remuneration; and for losses and expenses suffered as a result of the breach of contract.

Specific performance of an employment contract is rarely awarded by the courts. The courts are generally reluctant to force unwilling parties to continue an employment relationship. However, there can be special occasions where a court reinstates an employee if they have a special position. This commonly occurs with respect to high level public service roles, and with board and senior executive positions.

Maurice Blackburn has a highly successful record in wrongful dismissal matters – both through discrete, effective negotiations and, where necessary, via litigation – and we are ideally placed to achieve the best result for you.

If you have experienced or are currently facing wrongful dismissal, talk to us today about how we can help.

Have you been wrongfully dismissed?

Our specialist employment lawyers will get you the compensation you deserve. We are the nationally acknowledged experts in executive employment and wrongful dismissal matters and will ensure that your rights, earnings and professional reputation are protected. We will also ensure that you receive proper compensation for any damages and losses suffered; including:

  • loss of salary, income or fees;
  • loss of superannuation;
  • loss of seniority or opportunity to obtain further employment;
  • loss of access to profit sharing or bonus schemes; and
  • physical or mental injuries suffered because of the wrongful termination.

Damages for salary and remuneration will generally include the value of other contract benefits such as allowances, motor vehicles and mobile telephones. In some circumstances, you may also be able to successfully claim redundancy pay as outlined in your employment contract.

If you have been wrongfully dismissed, talk to us today about how we can achieve the best outcome for you.

Successful cases

Illegal sacking leads to settlement

Maurice Blackburn successfully acted for a manager who was falsely accused of having a conflict of interest, and was sacked on the spot. We negotiated with our client's employer and the case was favourably settled out of court for in excess of $100,000 plus all legal expenses.

 

Quinn v Overland

Quinn v Overland [2010] FCA 799

Ms Quinn was represented by Maurice Blackburn in her action against her employer.


The Federal Court of Australia ordered an injunction in favour of Ms Quinn, a public servant, against her employer Victoria Police. The effect of the injunction prevented Ms Quinn’s employer from further suspending Ms Quinn from work. At that time, Ms Quinn was already suspended from work pending an investigation into allegations of misconduct that had been previously made against her.

In coming to his decision, Justice Bromberg determined that Ms Quinn’s employer had failed to observe the statutory obligations imposed upon it by the Public Administration Act 2004 (Vic). Relevantly, the Act required the employer to provide its employees with procedural fairness in certain circumstances, and required the employer generally to observe “public sector employment principles”.

Notably, Justice Bromberg also highlighted the important value the Court prescribes to the non-economic characteristics of employment. Specifically, his Honour considered that the workplace provides the person with advantages beyond mere economic benefit, stating:

“Work provides employees with purpose, dignity, pride, enjoyment, social acceptance and many social connections. These non-pecuniary attributes of work are important and their denial can be devastating to the legitimate interests of any worker, either skilled or unskilled.”

Justice Bromberg considered that Ms Quinn’s suspension by Victoria Police had the effect of denying Ms Quinn of such non-economic benefits in a manner that was sufficiently detrimental and ordered that Ms Quinn’s suspension be lifted and she be permitted by her employer to return to work.

Frequently Asked Questions

What is the difference between wrongful dismissal and unfair dismissal?

Wrongful dismissal is different to unfair dismissal. Wrongful dismissal involves a breach of the employment contract and is a matter of common law.

'Unfair dismissal' describes a right of action that employees may have under the Fair Work Act 2009 (Cth) or similar state legislation. This section focuses on wrongful dismissal. Click here for more information on unfair dismissal.

What are the legal remedies for wrongful dismissal?

There are two major remedies for wrongful dismissal - specific performance of the contract (which requires the parties to abide by the contract) or compensation for loss and damage.

Compensation is the most common remedy for wrongful dismissal. The purpose of compensation is to put the injured party in the same position as if the contract had been performed according to its terms.

Specific performance of an employment contract is rarely awarded by the courts. The courts are reluctant to force unwilling parties to continue an employment relationship. However, there can be special occasions where a court reinstates an employee if they have a special position.

What sort of compensation can be awarded?

Damages can be awarded for any or all of the following:

  • loss of wages and other remuneration
  • loss of superannuation
  • compensation for 'injuries' suffered because of the purported termination, including psychiatric illnesses, and
  • loss of opportunity to obtain further employment or participate in bonus schemes.

Damages for wages and remuneration will generally include the value of other benefits that the employee was entitled to as of right under the contract, such as allowances, motor vehicles and mobile telephones. It will not generally include any amounts that were at the discretion of the employer, such as bonuses.

What steps am I obliged to take to avoid loss if I'm wrongfully dismissed?

An employee who has been wrongfully dismissed has an obligation to take reasonable steps to reduce or avoid loss. This is known as the 'duty to mitigate'. In the case of an employment contract, the duty to mitigate will generally require the innocent party to make reasonable efforts to obtain alternative employment.

Any income earned from alternative employment may be offset against the loss or damage caused by the wrongful termination.

If the employee fails to make reasonable efforts to offset their loss, the court may reduce their damages by the amount it considers they could have earned had they made reasonable efforts to mitigate their loss. However, an employee is not generally required to accept less favourable employment.

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