Workers are protected by law when it comes to being treated fairly and lawfully at work. This includes having the legal right not to be dismissed from their job without appropriate reason. If this happens, then this would be considered unfair dismissal.
It is important for business organizations to ensure that all legal requirements are being followed before dismissing an employee. Otherwise, the firm may end up being accused of unfair dismissal.
That is why firms cannot leave themselves open to even a slight possibility of unfair dismissal allegation. In the short-term, this can lead to very substantial legal damages being awarded against the firm by the civil count. And in the long-term, there will most likely be damages to the brand image and brand value.
Is dismissal fair or unfair?
When the employee is involved in a serious offense which counts as gross misconduct – an illegal act such as theft of company property, an assault on another employee, an assault on a customer, fraud, being drunk at work, etc. – the employer can dismiss the employee with immediate effect without any warning, without notice and without pay This will be considered fair dismissal
In all other cases except gross misconduct such as incompetence, poor conduct and misconduct, employers need to be able to show that dismissal is fair. This usually involves verbal warnings followed by written warnings before any dismissal is thought to be fair.
One of the following must be true such as inability to do the job even after sufficient training has been given, continuous negative attitude at work which has badly affected the employees or their work, continuous disregard of required health and safety procedures, deliberate destruction of an employer’s property, continuous bullying of other employees, etc.
The business must also be able to show that disciplinary procedures has been followed before dismissal can take place. For example, if an employee is late regularly, then the business must give warnings and follow the agreed disciplinary procedure.
What is unfair dismissal?
Unfair dismissal means ending the worker’s employment contract for a reason that is being considered as unfair in the law. It is termination of the employment by the employer that is not carried out according to agreed rules. Simply, when dismissal occurs when an employee is dismissed without a valid or legal reason. For example, the employee may have been wrongly accused of gross misconduct such as theft while he has done nothing wrong.
When dismissal is considered unfair?
There are very specific situations in which employee dismissal is considered unfair as it is in the breach of employment law. These causes of unfair dismissal include:
- No warnings given. Workers cannot be dismissed without verbal warnings followed by written warnings before any dismissal unless the worker is guilty of gross misconduct.
- Discrimination. According equal opportunities legislation, workers cannot be dismissed for discriminatory reasons which might include race, gender, religion, age, ethnicity, sexual orientation, etc. as these factors do not affect their jobs.
- Constructive dismissal. Workers cannot be dismissed when they forced into resignation because the employer has made it very difficult for them to continue in the job – the terms and conditions of employment were changed without any consultation with the employee.
- Trade Union membership. Workers cannot be dismissed for being a member of the union or joining the trade union.
- Pregnancy. Women cannot be dismissed when they are pregnant and during the breastfeeding period.
- Non-relevant criminal record. Workers cannot be dismissed for having a criminal record which is not central to the job, e.g. a cashier convicted of causing a car accident unless driving a car is specified in the job description.
In all cases of unfair dismissal, the employee has the legal right to seek compensation from the business.
Example 1: One of the fast-food restaurants was ordered to pay the waitress several thousand dollars in lost wages after the court ruled that the decision to dismiss her was too harsh and a written warning would have been more appropriate.
Example 2: Industrial Tribunal ruled that the man was unfairly dismissed as he was discriminated against because he was a member of a trade union, had his hours cut and was being given an employment contract. His employer was ordered to pay for lost wages and humiliation.
Protection against unfair dismissal
All employees need to be protected from being unfairly dismisses. Otherwise, employers could do whatever they wanted to do at any time. Whether or not a dismissal is unfair is going to be decided by a in the court of law.
So, what can an unfairly dismissed worker do? It is the right of every worker to claim unfair dismissal. If a worker thinks that the has been unfairly dismissed, he can take legal action against his employer.
- Trade Union: When the worker is a member of a trade union, then it is the trade union who will fight the case on the worker’s behalf. If a worker believes that he has been unfairly dismissed, then the employee has the legal right to take the case to a court hearing to apply for a review of the case.
- Industrial Tribunal: Industrial tribunal is an independent body that will look at the arguments of both the employer and employee and judge whether the dismissal was fair. If the court decides that a worker has been unfairly dismissed, the employee will be entitled to either get the job back or receive financial compensation for the loss of earnings and the mental stress endured.
In conclusions, when a business is found to dismiss the worker unfairly, it will be required to reinstate the worker or face substantial financial damages.
