Introduction
Unjust dismissal can be defined as an act of terminating an employee’s contract by an employer in an unjust manner and particularly the bridge of an employment contract. In normal cases, employment legislation and employee contract protects the employee from unjust dismissal and usually allows law recourse. In America, for example, where an employee feels that he or she has been discriminated against during the dismissal, other laws come into force and include; Race Relations Act, Disability Discrimination Act, the Sex Discrimination Act or Employment equality law, or any other law that protect employee harassment and unjust dismissals. The laws that protect employees from unjust dismissal exist, but some employers have been using some loopholes to gain an advantage over the employees in certain circumstances (Thomson and Rampton, 2003).
Discussion
This paper will therefore discuss the law concerning unjust dismissal and especially with reference to the balance between the employer and the employee. It will examine the issues that the law addresses, such as redundancy, trade union powers, and the interpretations of ‘circumstances’ that can be said that a case is justified or not. It will look into the case laws in the US and, more importantly, their relevance to the issue of unjust dismissals.
Legislation
Unjust dismissal legislation, policies, and laws are not drafted to penalize the employer who has dismissed an employee, but they are designed to address issues of compensation, and where there is justification, the employer is given the go-ahead to explain why the dismissal was necessary. There is no person or law that requires that employers be forced to retain workers who are lazy or dishonest. But the main question that lingers in the minds of employees, employers, government officers, trade unions and human right activists is the issue that concern the circumstances in which an employee can be said to have been dismissed unjustly or fairly. Some employers have been able to sack their workers when they have completely done nothing to warrant the sack (Thomson and Rampton, 2003).
Vexatious claims
Many employers believe that the current regime often has not protected them against vexatious and frivolous former employees who bring complaints after they have been dismissed. Even in cases where the employer overwhelmingly proves in court that the employees were fairly dismissed, the employers feel that they are confronted with challenges of high legal costs which they incur while defending their innocence.
If an employee without notice terminates his or her contract and it is related to a bridge of contract by the employer, the employee has the right to question any action by the employer. This is called constructive dismissal. In some cases, employment tribunals, independent arbitration, trade unions, or conciliation services are able to assist the employee/employer to put the case across (Thomson and Rampton, 2003).
Fair dismissal
The US law on unjust dismissal protects all employees against it, but an employer is Okayed to terminate employment if it is justifiable. The only time that an employer can justify that a dismissal was fair is when the following happens:
- There is evidence of redundancy on the part of the employee. However, it is always worth considering the process of redundancy because if the process is faulty, the employer can fall into the hurdles of the law hence giving an employee the opportunity to claim unjust dismissal compensation.
- Employee’s ability to perform or qualifications for the job. The employer, in this case, can replace the employee with someone who can do the job.
- When the conduct of the employee is questionable, any employee whose conduct is deemed unworthy such as corruption, theft, drunkenness, dishonesty, use of abusive language, regular lateness, etc., can justify an employer to dismiss an employee without fear of retribution.
- Due to a restriction or statutory duty that prohibits the continuation of employment.
- Any other reason that can justify the dismissal.
The law in the US specifically guarantees protection to those employees who have worked for the same employer for a certain company in a period of not less than two years and must be below the normal retirement age required by the law. In the US, the timeline is very important, and any case that is not reported to the Employment Tribunal within a period of three months is deemed to have expired and that it is not lawfully justifiable unless it is under extenuating circumstances. Every employer must be able to showcase that he has acted in a reasonable manner and follow the laid down statutory procedures of the termination of employment. The law requires that the employer fully investigates the situation before any necessary action is undertaken. Failure to follow the minimum requirements, the employee may be granted a valid reason to question the dismissal (Thomson and Rampton, 2003).
Unlawful termination
An unlawful termination can arise in a number of different circumstances and may include reasons such as the following.
Discrimination
Any form of discrimination that includes the dismissal of an employee because of their sex, religion, race, sexuality, disability, or background is deemed to be unlawful dismissal, and it is punishable by law.
Trade unions
Employees are allowed by law to join registered trade unions that will champion their rights. They are even entitled to take part in all the activities with which the trade unions are licensed to carry out, including participation in strikes and other activities.
Employee benefits
Failure to offer employees the necessary benefits could result in the termination of the contract. The worst of all is the fact that employees who are entitled to have paternity leave or maternity leave, dependants leave, or even ante-natal leave and their employment is terminated on the grounds of the above will have a valid case against the employer.
Industrial action
Taking part in industrial action is allowed by law, and that employers who insist on taking counteractions to the employees who participated in any strike cannot be allowed to do so. Such action according to the law is not justified, and employees dismissed on such grounds can lodge valid complaints with the necessary authorities.
Refusal to work
Employees are entitled to a legal 48 hour period to refuse to work, and any dismissal based on this is unlawful. This, however, should not be misused as a scapegoat for not coming to work.
The Employment Contract as Unequal Partnership
The workplace will never be an equal ground with employers who believe that it’s their right to control the employees. In many cases, the employer who has invested a lot of capital in the organization formulates the company’s regulations and procedures that will protect his investments as it is hard for employees to have the same rights in a workplace in an environment where the managers dictate what the employees do. In order, therefore, that a case for unjust dismissal is successfully lodged, the case must be critically assessed. The employees who feel that they have been unjustly dismissed should be able to understand their rights and any other policies that protect them. In some cases, the employees could not be in a financial position to enable them to go through the case satisfactorily, although there is always some external assistance from groups such as trade unions, the employee will subsequently have an uphill task to do continue pursuing the matter if certain factors such future employment prospects, legal costs, public image, and outcome predictions are anything to go by (Bohlander, 2007).
Cases of Unjust Dismissals in the US
The UK has had a fair share of reported cases of unjust dismissals ranging from non-governmental organizations, private firms, government institutions, or even the government departments themselves. One of such was for a banker; McAdie had worked as an accountant with the Royal Bank of Scotland for more than ten years in her home city. Last year, the management of the bank decided that she moves to a newly opened branch far away from her home. As part of her family commitment, the accountant complained about the move to the new location, and soon the argument was fraught, and it threatened McAdie’s relationship with her manager. She indicated that her manager’s actions and behavior amounted to harassment and, therefore, she was unjustly treated. She then developed some stress, and the management saw it genuine to sign an off-sick for her. Thereafter, she brought in grievances about the whole issue and the way it was being handled, McAdie found the whole to be suspicious and discriminatory. Three months later, she received her dismissal letter. She finally went to the Employment Tribunal to file a case against the Bank (Magi, 2007).
The Employment Appeal Tribunal found out that her transfer and grievances were not handled in a fair manner, and in addition to that, her medical condition was a result of the bank. The tribunal, therefore, upheld the unjust dismissal case for her. The case was not, however, upheld by the Court of Appeal, where the employer had gone to launch his case. The Court of Appeal argues that while the employer has contributed to the employee’s ill health status culpably, the employer cannot be prevented from effecting a fair dismissal because it is not economical for the bank to withstand long periods of absence regardless of the cause of the illness. The Courts went ahead to suggest that the bank should make a replacement for the employee. Based on what the court knows at the time of the case, the question of an unjust dismissal claim is based on the reasonableness of the decision by the employer. The courts, however, regret the actions of the bank and warn of future treatment, although it finally concludes that there is no possibility of the employee continuing employment as there is ‘no alternative to dismissal.’
Implications of This Case
This particular case provides some kind of relief to many employers who feel that employees take advantage of available laws to seek re-employment/compensation in a situation where they have been justifiably dismissed. In a context where the employer is partly or wholly responsible for the illness of an employee, including stress, the law can justify the dismissal. While dismissal can be said to be fair in such circumstances, the law puts it clear that the employer should go the ‘extra mile’ and wait for a long time in order to give the employee time to recover and resume duty. In other circumstances, as in this case, the employer can be sued for constructive dismissal, personal injury, or discrimination (Magi, 2007).
Labor laws
Labor laws are very important in addressing cases of unjust dismissals. They are designed to minimize issues of misunderstandings between the employer and employee when it comes to employment law. These laws help to boost employee-employer relations and that in the long run, cases of unjust dismissals will not arise. These relations are supposed to be transactional in essence and normally work on the foundation of “give and take.” Yet, in many cases, the employees end up giving a lot of what he receives. Over time, these laws have been made to favor the employer. It is increasingly difficult to have equal footing with new labor markets and a highly liberalized economy. The labor laws being formed and passed give an advantage to the employer. An example of the laws that give the employer a lot of power is the law on redundancy, which states that when an employer does not or no longer need the services of the employee to perform the given work, then he can declare the employee redundant (Employee Relations Advisory Organization, 2004).
The āEmployment Equality Regulationā
The plan by the government to introduce clear legislations such as the ‘Employment Equality Regulation’ will ultimately draw sensible frameworks and balances between the employer and employee dismissal cases that will bring more clarity. It will create barriers that, according to the government, will weigh reasonable community standards and the judiciary. This has been necessitated by the fact that there is a need for fairness in addressing dismissals. The law will address issues of age, religion, harassment, and conduct of both employers and employees (Armstrong, 2006).
Conclusion
Every country of the world at least provides safeguards that protect individual employees from being dismissed unjustly. Protecting ordinary workers from dismissals without cause is basically a feature of a civilized society that not only respects democracy and human rights but also understands labor relations. The main cases that employers can justify fair dismissal are related performance, age, conduct, and qualification of the employees (Thomson and Rampton, 2003).
Reference
Armstrong. M. (2006): Handbook of Human Resource Management Practice, 10th Edition, London, Kogan Page.
Bohlander, G and Snell, S. (2007): -Managing human resources: New York: Thomson Learning.
Employee Relations Advisory Organization, (2004) Washington D.C, Article 2.
Magi, B. (2007): Unjust Dismissal Claims. Web.
Thomson, C. and Rampton, L. (2003): Human Resource Management. Melbourne Press, New York.