Breach of Employment Contract

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Breach of employment contract overview

An employment contract generally defines the relationship between employer and employee. However, employment contracts are different to other types of contracts as they are supported and regulated by national legislation that outlines a worker’s minimum entitlements. These entitlements form the basis of the Employment Safety Net and are referred to as the National Employment Standards (NES) as contained in Part 2-2 of the Fair Work Act 2009 (Cth) (The Fair Work Act).1

Issues that typically result in a breach of employment contract include:

  • An employee is terminated without reasonable notice;
  • An employee is terminated without notice for misconduct and there were no reasonable grounds to do so;
  • A fixed-term employment contract is terminated before the end of the term; and
  • Non-compliance with the NES.

At Gibbs Wright Litigation Lawyers, our Employment Team assists clients with effective dispute resolution strategies to ensure their rights are sufficiently protected. Employment Law in the Australian legal context is more than just contract disputes – we are able to assist in a range of employment disputes, including litigation and legal action before the Fair Work Commission.

We assist both employers and employees in a wide range of matters, whether they are establishing or defending a claim. Get in touch with us today if you are:

  • An employee, and you think that your employer has breached your employment contract; or
  • An employer facing a dispute regarding a breach of contract claim by an employee.

Note: There are legal differences between a claim for unfair dismissal (provided for under legislation) and a claim for wrongful dismissal (breach of contract), especially in relation to limitation periods. If you believe you have been unfairly dismissed, please contact us immediately as you will generally only have 21 days from the date the dismissal takes effect to lodge a claim (although exceptions may apply).2

Costs

Under Australian law, ‘costs’ usually refers more specifically to legal costs incurred in bringing or fighting a claim. Upon a successful claim, you will generally be able to recover a portion of the costs of the legal fees incurred in fighting your matter. The procedure for claiming costs is different depending on a number of circumstances, including whether your employment matter is resolved through taking action in state or federal courts or through the Fair Work Commission. Some further information about each option is outlined below.

Fair Work Commission

The Fair Work Commission has the discretion to order costs against another party if it is satisfied that a party unreasonably caused the costs to be incurred.

Example of Fair Work Commission discretion in a costs order

If you have a strong claim for unfair dismissal and you win in your claim, or if a poor claim was made against you, you may be able to have part or most of your legal costs paid for by the other party, or alternatively by the other party’s lawyer or paid agent. 

This decision is at the discretion of the Fair Work Commissioner and will therefore be determined on a case-to-case basis. Accordingly, if you make an unsubstantiated claim against a previous employer, or if you unreasonably defend a previous employee’s claim against you, you may be liable for the other party’s costs. It is important to note that the Fair Work Commission can only make an order for costs if you or your lawyer make an application for costs under the Fair Work Act.

Court

Alternatively, the general principle of action resolved through the state or federal courts is that ‘costs follow the event.’ This means that usually, the unsuccessful party will be ordered to pay a portion of the successful party’s reasonable legal costs incurred in bringing or defending the matter. This concept applies to plaintiffs and defendants alike. In other words, a plaintiff who brings an unsubstantiated or frivolous claim may be equally liable for the defendant’s costs of defending the proceeding as a defendant would be for the plaintiff’s costs in bringing a proceeding where the defendant is found to have done the wrong thing and an order is awarded against him or her.

Related Matters

Adverse Action

If you are an employee who has been dismissed, demoted, had a salary cut, or has had another related thing happen to you in relation to your employment that amounts to a breach of a workplace right or discrimination, you may be entitled to damages. Adverse action is when a person engages in, threatens to engage in or otherwise organises any form of conduct that has an adverse effect on another party. For more information, see our Adverse Action article.

Unfair Dismissal

If you have been dismissed and you feel the dismissal was unreasonable or excessively harsh, you may be entitled to compensation. For more information, see our Unfair Dismissal in Australia article.

Contact Gibbs Wright Litigation Lawyers

Contact Gibbs Wright Litigation Lawyers about your employment dispute for a free and confidential consultation to discuss your legal rights and options.

[1] Fair Work Act 2009 (Cth) Pt 2-2.

[2] Fair Work Act 2009 (Cth) s 366(1)(a).

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The content of this publication is intended as general commentary only and may not be suitable or applicable to your personal circumstances. It is not intended to replace independent legal advice. You can contact us at our Brisbane Office for a free consultation on a range of litigation matters on (07) 3088 6364.

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