The answer is “Yes”.
While they both involve the dismissal of an employee and potential reinstatement and/or orders for compensation, they are otherwise two fundamentally different causes of action.
An unfair dismissal application primarily enquires into:
1. Whether there was a valid reason for dismissal (ie. that legally justifies dismissal); and
2. Whether the dismissal was procedurally and substantively fair and reasonable.
If compensation is ordered, it is generally limited to the equivalent of 6 months wages or half the statutory high-income threshold, whichever is lower.
In contrast, an adverse action involving dismissal application is all about the reason(s) for the dismissal and whether the reason or reasons included a proscribed (ie. unlawful) reason.
It is not about the “fairness” of the decision.
There is also a reverse onus of proof that requires the employer to prove that the reason or reasons for the dismissal did not include a proscribed reason. This will usually require producing all those people involved in making the decision to give evidence in Court about their reason or reasons.
There is also no cap on compensation orders and civil penalties can be imposed in addition to compensation.
These are the main, but not all of the differences between these two legal actions.
As such, these two causes of action require a very different approach from both applicant employees and respondent employers, particularly in terms of the evidence that will need to be led by the parties if the application proceeds to a full hearing.
Employees who feel they have been unfairly or unlawfully dismissed should immediately seek legal advice to determine the most appropriate course of action and to ensure that they have the best chance of success.
There are strict 21 day time limits for filing both types of application.
And employers who are the subject of one of these types of applications should seek legal advice to determine the most appropriate way of responding to the application.
