Unjust Dismissal
   HOME

TheInfoList



OR:

In
labour law Labour laws (also known as labor laws or employment laws) are those that mediate the relationship between workers, employing entities, trade unions, and the government. Collective labour law relates to the tripartite relationship between employee, ...
, unfair dismissal is an act of
employment termination Termination of employment or separation of employment is an employee's departure from a job and the end of an employee's duration with an employer. Termination may be voluntary on the employee's part, or it may be at the hands of the employer, of ...
made without good reason or contrary to the country's specific legislation.


Situation per country


Australia

(See: '' unfair dismissal in Australia'')
Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
has long-standing protection for employees in relation to dismissal. Most of that protection was however confined in one of two ways. An employer could not dismiss an employee for a prohibited reason, most typically membership of a union.Such a
''Commonwealth Conciliation and Arbitration Act'' 1904 (Cth)
s9(1).
An individual however could not challenge their own dismissal as being unfair and instead had to rely upon a union challenging the fairness of the dismissal. This remedy however was generally only available in the state tribunals. A similar definition existed at the Commonwealth level, however it was considerably limited by the requirement under the Constitution to establish an inter-state dispute. The ability for an individual to seek relief from unfair dismissal was first established in a statutory scheme in
South Australia South Australia (commonly abbreviated as SA) is a state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of , it is the fourth-largest of Australia's states and territories ...
in 1972, followed thereafter by
Western Australia Western Australia (commonly abbreviated as WA) is a state of Australia occupying the western percent of the land area of Australia excluding external territories. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to th ...
,
Queensland ) , nickname = Sunshine State , image_map = Queensland in Australia.svg , map_caption = Location of Queensland in Australia , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , established_ ...
,
New South Wales ) , nickname = , image_map = New South Wales in Australia.svg , map_caption = Location of New South Wales in AustraliaCoordinates: , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , es ...
and
Victoria Victoria most commonly refers to: * Victoria (Australia), a state of the Commonwealth of Australia * Victoria, British Columbia, provincial capital of British Columbia, Canada * Victoria (mythology), Roman goddess of Victory * Victoria, Seychelle ...
in the early 1990s. Protection from unfair dismissal at the Commonwealth level was enhanced in 1984 by the
Commonwealth Conciliation and Arbitration Commission The Australian Industrial Relations Commission (AIRC), known from 1956 to 1973 as the Commonwealth Conciliation and Arbitration Commission and from 1973 to 1988 as the Australian Conciliation and Arbitration Commission, was a tribunal with powers ...
with its ruling in the ''Termination, Change and Redundancy Case'', that awards should contain a provision that dismissal "shall not be harsh, unjust or unreasonable" and subsequent awards following it were upheld by the
High Court of Australia The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution. The High Court was established fol ...
. The
Parliament of Australia The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislature, legislative branch of the government of Australia. It consists of three elements: the monarch (represented by the ...
later extended the reach of protection from unfair dismissal with the passage of the ''Industrial Relations Reform Act 1993'', which was based on the
external affairs power Section 51(xxix) of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs". In recent years, most att ...
and the
ILO The International Labour Organization (ILO) is a United Nations agency whose mandate is to advance social and economic justice by setting international labour standards. Founded in October 1919 under the League of Nations, it is the first and ol ...
'' Termination of Employment Convention, 1982''. In current Australian law, unfair dismissal occurs where the
Fair Work Commission The Fair Work Commission (FWC), until 2013 known as Fair Work Australia (FWA), is the Australian industrial relations tribunal created by the ''Fair Work Act 2009'' as part of the Rudd Government's reforms to industrial relations in Austral ...
, acting under section 385 of the ''
Fair Work Act 2009 The ''Fair Work Act 2009'' (Cth) is an Act of the Parliament of Australia, passed by the Rudd Government to reform the industrial relations system of Australia. It replaced the Howard Government's WorkChoices legislation, it established Fai ...
'', determines that: #a person has been dismissed; #the dismissal was harsh, unjust or unreasonable; #it was not consistent with the ''Small Business Fair Dismissal Code''; and #it was not a case of genuine redundancy. If the Fair Work Commission determines that a dismissal was unfair, the Commission must decide whether to order reinstatement or compensation. The commission is required to first consider whether reinstatement is appropriate and can only order compensation (capped at 6 months pay) if it is satisfied that reinstatement is inappropriate.


Canada

Labour law in Canada falls within both federal and provincial jurisdiction, depending on the sector affected. Complaints relating to unjust dismissal (french: congédiement injuste) (where "the employee has been dismissed and considers the dismissal to be unjust," which in certain cases also includes
constructive dismissal In employment law, constructive dismissal, also called constructive discharge or constructive termination, occurs when an employee resigns as a result of the employer creating a hostile work environment. Since the resignation was not truly volu ...
) can be made under the '' Canada Labour Code'', as well as similar provisions in effect in
Quebec Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirtee ...
and
Nova Scotia Nova Scotia ( ; ; ) is one of the thirteen provinces and territories of Canada. It is one of the three Maritime provinces and one of the four Atlantic provinces. Nova Scotia is Latin for "New Scotland". Most of the population are native Eng ...
, all of which were introduced in the late 1970s. Under the federal Code, non-unionized employees with more than twelve months of continuous employment, other than managers, have the ability to file complaints for unjust dismissal within 90 days of being so dismissed. In making the complaint, the employee has the right to "make a request in writing to the employer to provide a written statement giving the reasons for the dismissal," which must be supplied within 15 days of the request. Complaints are initially investigated by an inspector, who will then work towards a settlement within a reasonable time,CLC, s. 241 failing which the
Minister of Labour Minister of Labour (in British English) or Labor (in American English) is typically a cabinet-level position with portfolio responsibility for setting national labour standards, labour dispute mechanisms, employment, workforce participation, traini ...
may refer the matter to an adjudicator in cases other than where "that person has been laid off because of lack of work or because of the discontinuance of a function" or "a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament." Where the dismissal is determined to be unjust, the adjudicator has broad remedial authority, including ordering the payment of compensation and reinstatement to employment. While many employers have attempted to contract out of these provisions through the payment of a
severance package A severance package is pay and benefits that employees may be entitled to receive when they leave employment at a company unwillfully. In addition to their remaining regular pay, it may include some of the following: * Any additional payment base ...
together with a signed
release Release may refer to: * Art release, the public distribution of an artistic production, such as a film, album, or song * Legal release, a legal instrument * News release, a communication directed at the news media * Release (ISUP), a code to iden ...
from pursuing any claims under the Code, the
Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
ruled in 2016 that the Code's provisions effectively ousted such
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
remedies.


France

Unfair dismissal became part of
French labour law French labour law is the system of labour law operating in France. History During the French Revolution, the ''Le Chapelier Law 1791'' was passed to prohibit unions or guilds and strikes in particular, with a proclamation of "free enterprise". O ...
in 1973, but certain other protections had been previously instituted as far back as 1892. The ''Labour Code'' (french: Code du travail) governs the procedure under which dismissal (french: licenciement) may occur, as well as specifying the grounds under which it is valid or not. Dismissal may occur on grounds of personal performance (french: motif personnel) or economic reasons (french: motif économique). Where the employer believes that there is a valid reason (french: cause réelle et sérieuse) for dismissal on personal grounds, it must give five working days' notice to the employee that a meeting with him must take place, and a decision to dismiss (exercised in writing, sent by registered mail) can only be made not less than two days afterwards. Where dismissal occurs on economic grounds, the employee has the right to be notified of the employer's obligation during the following 12 months to inform him of any position that becomes available that calls for his qualifications. Failure to give prior notice, as well as failure to advise of any open position, will be causes for unfair dismissal. An employee may challenge a dismissal by making a complaint to the
Labour Court A labor court (or labour court or industrial tribunal) is a governmental judiciary body which rules on labor or employment-related matters and disputes. In a number of countries, labor cases are often taken to separate national labor high courts. O ...
(french: Conseil de prud'hommes). Where an employee has at least two years' service, the employer faces several claims: :* Failure to follow procedural requirements may result in compensation of one month's pay being awarded to the employee. :* Where unfair dismissal (french: licenciement sans cause réelle et sérieuse) has been determined to have occurred, the Court may order reinstatement of employment (french: réintegration). If either party refuses to accept that remedy, compensation of not less than six months' pay will be awarded instead The employer will also be ordered to repay any
unemployment benefits Unemployment benefits, also called unemployment insurance, unemployment payment, unemployment compensation, or simply unemployment, are payments made by authorized bodies to unemployed people. In the United States, benefits are funded by a comp ...
the employee may have received, to a maximum of six months' paid. Where unfair dismissal occurs because of the failure to observe the notification obligations for recall rights, the court may award: :* where the employee has at least two years' service and the workforce consists of at least 11 workers, a minimum of two months' pay :* in all other cases, an amount in line with the existence and extent of any detriment the employee faced. Where an employee has less than two years' service, or where the workforce has fewer than 11 employees, recall rights are not available,''Code du travail'', art. L1235-14 as well as the normal remedies for unfair dismissal. The remedy of one month's pay is still available in cases involving failure to follow procedural requirements, and an appropriate amount of compensation may still be ordered in cases where dismissal was improperly executed (french: licenciement abusif). Where an employee has had at least one year's service, the employer also faces a separate claim for severance pay (french: indemnité de licenciement). The amount is equal to 20% of the base monthly pay times the number of years' service up to 10 years, plus 2/15 of base monthly pay times the number of years' service greater than 10 years.


Namibia

Unfair dismissal in
Namibia Namibia (, ), officially the Republic of Namibia, is a country in Southern Africa. Its western border is the Atlantic Ocean. It shares land borders with Zambia and Angola to the north, Botswana to the east and South Africa to the south and ea ...
is defined by the ''Labour Act, 2007'', under which the employer has the burden of the proof that a dismissal was fair. Explicitly listed as cases or unfair dismissal are those due to discrimination in terms of race, religion, political opinion, marital or socio-economic status, as well as dismissals that arise from trade union activities. Any termination of employment that does not give any valid and fair reason is automatically assumed unfair.


United Kingdom

After the release of the
Donovan Report The Royal Commission on Trade Unions and Employers’ Associations (also known as the Donovan Commission) was an inquiry into the system of collective UK labour law, chaired by Lord Donovan and heavily influenced by the opinions of Hugh Clegg. Its ...
in 1968, the
British Parliament The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative supremacy ...
passed the
Industrial Relations Act 1971 The Industrial Relations Act 1971 (c.72) was an Act of the Parliament of the United Kingdom, since repealed. It was based on proposals outlined in the governing Conservative Party's manifesto for the 1970 general election. The goal was to stabil ...
which introduced the concept of unfair dismissal into UK law and its enforcement by the
National Industrial Relations Court {{Use dmy dates, date=April 2022 The National Industrial Relations Court (NIRC) was established on 1 December 1971 under Section 99 of the Industrial Relations Act 1971. The NIRC was created by the Conservative government of Ted Heath as a way to ...
. The
Trade Union and Labour Relations Act 1974 The Trade Union and Labour Relations Act 1974 ("TULRA") was a UK Act of Parliament (now repealed) on industrial relations. The Act contains rules on the functioning and legal status of trades union, the presumption that a collective agreement ...
abolished the court and replaced it with a network of
industrial tribunal Employment tribunals are tribunal public bodies in England and Wales and Scotland which have statutory jurisdiction to hear many kinds of disputes between employers and employees. The most common disputes are concerned with unfair dismissal, red ...
s (later renamed
employment tribunal Employment tribunals are tribunal public bodies in England and Wales and Scotland which have statutory jurisdiction to hear many kinds of disputes between employers and employees. The most common disputes are concerned with unfair dismissal, red ...
s). The scheme is currently governed by Part X of the
Employment Rights Act 1996 The Employment Rights Act 1996 (c. 18) is a United Kingdom Act of Parliament passed by the Conservative government to codify existing law on individual rights in UK labour law. History Previous statutes, dating from the Contracts of Employmen ...
. Employees have the right not to be unfairly dismissed (with the exception of a number of exclusions). Following discussions with an employer, an employee can agree not to pursue a claim for unfair dismissal if they reach a
settlement agreement In law, a settlement is a resolution between disputing parties about a legal case, reached either before or after court action begins. A collective settlement is a settlement of multiple similar legal cases. The term also has other meanings in t ...
(historically a
compromise agreement In the United Kingdom, a compromise agreement is a specific type of contract, regulated by statute, between an employer and its employee (or ex-employee) under which the employee receives consideration, often a negotiated financial sum, in exchang ...
). For a settlement agreement to be binding the employee must have taken advice as to the effect of the agreement from a relevant independent adviser, that is a qualified lawyer; a Trade Union certified and authorised officer, official, employee or member; or a certified advice centre worker. In 2011, Aikens LJ summarized the jurisprudence on what constitutes an unfair dismissal: #The reason for the dismissal of an employee is a set of facts known to an employer, or it may be a set of beliefs held by him, which causes him to dismiss an employee. #An employer cannot rely on facts of which he did not know at the time of the dismissal of an employee to establish that the "real reason" for dismissing the employee was one of those set out in the statute or was of a kind that justified the dismissal of the employee holding the position he did. #Once the employer has established before a tribunal that the "real reason" for dismissing the employee is one within s. 98(1)(b), i.e. that it was a "valid reason", the Employment Tribunal has to decide whether the dismissal was fair or unfair. That requires, first and foremost, the application of the statutory test set out in s. 98(4)(a). #In applying that sub-section, the tribunal must decide on the reasonableness of the employer's decision to dismiss for the "real reason". That involves a consideration, at least in misconduct cases, of three aspects of the employer's conduct. First, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly, did the employer believe that the employee was guilty of the misconduct complained of and, thirdly, did the employer have reasonable grounds for that belief. If the answer to each of those questions is "yes", the tribunal must then decide on the reasonableness of the response of the employer. #In doing the exercise set out above, the tribunal must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to its own subjective views, whether the employer has acted within a "band or range of reasonable responses" to the particular misconduct found of the particular employee. If it has, then the employer's decision to dismiss will be reasonable. But that is not the same thing as saying that a decision of an employer to dismiss will only be regarded as unreasonable if it is shown to be perverse. #The tribunal must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer. It must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which "a reasonable employer might have adopted". #A tribunal may not substitute its own evaluation of a witness for that of the employer at the time of its investigation and dismissal, save in exceptional circumstances. #A tribunal must focus its attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any appeal process) and not on whether in fact the employee has suffered an injustice.


See also

*
Wrongful dismissal In law, wrongful dismissal, also called wrongful termination or wrongful discharge, is a situation in which an employee's contract of employment has been terminated by the employer, where the termination breaches one or more terms of the contra ...


Further reading

* * *


Notes


References

{{Reflist Labour law