Unfair dismissal

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In labour law, unfair dismissal is an act of employment termination made without good reason or contrary to the country's specific legislation.

Situation per country[edit]

Australia[edit]

Relief from unfair dismissal was first established in a statutory scheme in South Australia in 1972,[1][2] followed thereafter by Western Australia,[3] Queensland, New South Wales and Victoria in the early 1990s.[4] It was first adopted in 1984 at the Commonwealth level by the Commonwealth Conciliation and Arbitration Commission with its ruling in the Termination, Change and Redundancy Case,[5][6] and subsequent awards following it were upheld by the High Court of Australia.[7][8] The Parliament of Australia later extended its reach with the passage of the Industrial Relations Reform Act 1993,[9] as a consequence of the adoption of the ILO Termination of Employment Convention, 1982, together with the High Court's ruling in the Tasmanian Dams Case.[10]

In current Australian law, unfair dismissal occurs where the Fair Work Commission, acting under section 385 of the Fair Work Act 2009,[11][12] determines that:

  1. a person has been dismissed;[13]
  2. the dismissal was harsh, unjust or unreasonable;[14]
  3. it was not consistent with the Small Business Fair Dismissal Code;[15][16] and
  4. it was not a case of genuine redundancy.[17]

The scope of coverage is quite broad, but certain minor exceptions exist, which vary from State to State.[18] In general, it covers those who have worked more than six months for an employer (or more than one year for a small business employer),[19] for which one or more or the following conditions must apply:[20]

  1. a modern award covers the person;
  2. an enterprise agreement applies to the person in relation to the employment;
  3. the person's annual rate of earnings is determined to be less than the high income threshold.[21]

Where the Fair Work Act does not apply, relief from unfair dismissal may arise under State laws.[22] In Western Australia, recourse may be available from the Western Australian Industrial Relations Commission.[23][24]

Canada[edit]

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,"[25] which in certain cases also includes constructive dismissal)[26] can be made under the Canada Labour Code,[27] as well as similar provisions in effect in Quebec[28] and Nova Scotia.[29]

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.[30] 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.[31] Complaints are initially investigated by an inspector, who will then work towards a settlement within a reasonable time,[31] failing which the Minister of Employment and Social Development 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."[32] Where the dismissal is determined to be unjust, the adjudicator has broad remedial authority, including ordering the payment of compensation and reinstatement to employment.[33]

While many employers have attempted to contract out of these provisions through the payment of a severance package together with a signed release from pursuing any claims under the Code,[33] the Supreme Court of Canada ruled in 2016 that the Code's provisions effectively ousted such common law remedies.[34]

France[edit]

In French labour law defines in which situations an employee may be dismissed or made redundant. An employee may challenge a decision on the grounds that it was unfair by making a complaint to the employment tribunal.

Namibia[edit]

Unfair dismissal in Namibia is defined by the Namibian Labour Act of 2007; the employer has the burden of the proof that a dismissal was fair.[35] 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.[36]

United Kingdom[edit]

Unfair dismissal in United Kingdom is defined by the Employment Rights Act 1996.[37] Employees have the right not to be unfairly dismissed (with the exception of a number of exclusions [38]). Following discussions with an employer, an employee can agree not to pursue a claim for unfair dismissal if they agree to a Settlement Agreement (historically a Compromise Agreement). 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.[39] [40]

See also[edit]

Further reading[edit]

References[edit]

  1. ^ Chapman, Anna (2009). "10: The Decline and Restoration of Unfair Dismissal Rights". In Forsyth, Anthony; Stewart, Andrew. Fair Work: The New Workplace Laws and the Work Choices Legacy. Sydney: Federation Press. p. 208. ISBN 978-1-86287-736-8. 
  2. ^ Industrial Conciliation and Arbitration Act, 1972 (SA) (No 125 of 1972), s. 15(1)(e)
  3. ^ Industrial Relations Amendment Act 1993 (WA) (No 15 of 1993), ss. 6–7
  4. ^ Voll 2005, p. 538.
  5. ^ Southey 2015, p. 152.
  6. ^ Termination, Change and Redundancy Case, (1984) 8 IR 34 (2 August 1984).
  7. ^ Southey 2015, p. 153.
  8. ^ Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63, (1987) 163 CLR 656 (16 December 1987); Re Federated Storemen & Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (the "Wooldumpers case") [1989] HCA 10, (1989) 166 CLR 311 (10 February 1989)
  9. ^ Industrial Relations Reform Act 1993, No. 109 of 1993
  10. ^ Voll 2005, p. 537.
  11. ^ Fair Work Act 2009 (Cth) s 385
  12. ^ "Unfair dismissal". Fair Work Commission. Retrieved 25 July 2016. 
  13. ^ within the meaning of the Fair Work Act 2009 (Cth) s 386
  14. ^ within the meaning of the Fair Work Act 2009 (Cth) s 387
  15. ^ "Small Business Fair Dismissal Code". Fair Work Commission. Retrieved 25 July 2016. 
  16. ^ Fair Work Act 2009 (Cth) s 388
  17. ^ within the meaning of the Fair Work Act 2009 (Cth) s 389
  18. ^ Fair Work Act 2009 (Cth) s 14
  19. ^ Fair Work Act 2009 (Cth) s 383
  20. ^ Fair Work Act 2009 (Cth) s 382
  21. ^ as determined under the Fair Work Act 2009 (Cth) s 333
  22. ^ "Termination of Employment: National Guidelines for Managers and Supervisors in Australia" (PDF). Clayton Utz. 2015. 
  23. ^ "Unfair Dismissals and Contractual Entitlements". Western Australian Industrial Relations Commission. Retrieved 25 July 2016. 
  24. ^ Industrial Relations Act 1979 (WA) s 23A
  25. ^ CLC, s. 240
  26. ^ "Unjust Dismissal". Employment and Social Development Canada. January 5, 2016. 
  27. ^ Canada Labour Code, R.S.C. 1985, c. L-2, Part III, Div. XIV
  28. ^ Act respecting labour standards, CQLR, c. N‑1.1, ss. 82, 82.1(3), 124, 126; applying to those have have worked for at least two years who have "not been dismissed for a good and sufficient cause." (French: congédié sans une cause juste et suffisante)
  29. ^ Labour Standards Code, R.S.N.S. 1989, c. 246, ss. 6, 21, 23, 71 and 72, 78; applying to those have have worked for at least ten years who have been discharged or suspended "without just cause."
  30. ^ Ruslim 2014, p. 5.
  31. ^ a b CLC, s. 241
  32. ^ CLC, s. 242
  33. ^ a b Ruslim 2014, p. 6.
  34. ^ Fine, Sean (July 14, 2016). "Supreme Court ruling protects federally regulated workers from unfair dismissal". The Globe and Mail. , discussing Wilson v Atomic Energy of Canada Ltd 2016 SCC 29 (14 July 2016)
  35. ^ "Namibia Labour Law. Unfair Dismissal". HR@Work. Retrieved 3 May 2012. 
  36. ^ Promulgation of Act of Parliament #11 of 2007, Labour Act, 2007 (PDF). Government Gazette of the Republic of Namibia 3971. Office of the Prime Minister. 31 December 2007. pp. 40–41. 
  37. ^ Employment Rights Act 1996, full text
  38. ^ Dismissal: Your Rights, UK.Gov
  39. ^ What is a Compromise Agreement?
  40. ^ "Employment Rights Act 1996". www.legislation.gov.uk. Retrieved 2016-05-01. 

External links[edit]