Dismissal (employment)

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An early 20th-century illustration of a university faculty member being "given the boot", slang for a form of involuntary termination. 1909 Tyee - Faculty Foot.jpg
An early 20th-century illustration of a university faculty member being "given the boot", slang for a form of involuntary termination.

Dismissal (also called firing) is the termination of employment by an employer against the will of the employee. Though such a decision can be made by an employer for a variety of reasons, [1] ranging from an economic downturn to performance-related problems on the part of the employee, being fired has a strong stigma in some cultures.

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To be dismissed, as opposed to quitting voluntarily (or being laid off), is often perceived as being the employee's fault. Finding new employment may often be difficult after being fired, particularly if there is a history of being terminated from a previous job, if the reason for firing is for some serious infraction, or the employee did not keep the job very long. Job seekers will often not mention jobs that they were fired from on their resumes; accordingly, unexplained gaps in employment are often regarded as a red flag.

Usage

While the main formal term for ending someone's employment is "dismissal", there are a number of colloquial or euphemistic expressions for the same action.

"Firing" is a common colloquial term in the English language (particularly used in the U.S. and Canada), which may have originated in the 1910s at the National Cash Register Company. [2] Other terms for dismissal are being "canned", "let go", "ran-off", "axed", being given walking papers, the pink slip or one's cards, [3] "boned", or "shown the door". Other terms, more often used in Commonwealth countries, include "to get the boot", "to get the sack", or simply to be "sacked". [4] [5]

Reasons

Most US states have adopted the at-will employment contract that allows the employer to dismiss employees without having to provide a justified reason for firing, although the variety of court cases that have come out of "at-will" dismissals have made such at-will contracts ambiguous. [6] Often, an at-will termination is handled as a "layoff". Sometimes, an employee will be dismissed if an employer can find better employees than the incumbent, even if the fired employee has not technically broken any rules. This is common with probationary employees who were recently hired, but who cannot adjust to the environment of the workplace, or those who have been around for a long time, but can be replaced with a less experienced employee who can be paid a lower salary. In contrast, a dismissal in France is subjected to a just cause and a formal procedure. [7]

Some examples include conflict of interest, where the employee has done nothing wrong, but the presence of the employee on the employer's payroll may be harmful to the employer. For example:

More common reasons for firing include attendance problems, insubordination (talking back to a manager or supervisor), drinking alcoholic beverages or doing illegal drugs at work, or consuming the same substances before work and showing up to work while intoxicated or "high" (an especially serious problem in jobs where the worker drives a vehicle, boat or aircraft or operates heavy machinery) or off job-site conduct. [8]

Additional consequences

Some fired employees may face additional consequences besides their dismissal. This may occur when the reason for the termination is a violation of criminal law, or if serious damages are caused to the employer as a result of the employee's actions. Such ex-employees may face criminal prosecution, a civil lawsuit, or a reporting to a database of those who have engaged in serious misconduct in such a position, so that the chances of ever obtaining a similar position with another employer are less likely (blacklisting). Some examples are a caregiver who engages in abuse, a bank teller who has stolen money from the cash drawer, or a member of law enforcement who has committed police brutality.

For the most serious violations, especially when the employer's security may be at risk from the employee in question, a guard or officer may escort a fired employee from the workplace to the parking lot upon their dismissal. Such actions are often taken by government offices or large corporations that contain sensitive materials, and where the risk exists that the terminated employee may remove some of these materials or otherwise steal trade secrets in order to retaliate against the employer or use it to the advantage of a competing enterprise.

Discriminatory and retaliatory termination

In some cases, the firing of an employee is a discriminatory act. Although an employer may often claim the dismissal was for "just cause", these discriminatory acts are often because of the employee's legally protected characteristics, which vary from place to place. They may include physical or mental disability, age, race, religion, gender, HIV status or sexual orientation. Other unjust firings may result from a workplace manager or supervisor wanting to retaliate against an employee. Often, this is because the worker reported wrongdoing (often, but not always sexual harassment or other misconduct) on the part of the supervisor. Such terminations are often illegal. Many successful lawsuits have resulted from discriminatory or retaliatory termination.[ citation needed ]

Under US law, workers are entitled to workplace decisions that do not discriminate against their membership in a protected group such as national origin, but they are not entitled to overall fairness. [9] It is legal for an American employee to be fired for things such as disagreeing with the employer or not getting along well with others, even if the employee is correct.

Discriminatory or retaliatory termination by a supervisor can take the form of administrative process. In this form the rules of the institution are used as the basis for termination. For example, if a place of employment has a rule that prohibits personal phone calls, receiving or making personal calls can be the grounds for termination even though it may be a common practice within the organization.

Changes of conditions

Employers who wish for an employee to exit of their own accord, but do not wish to pursue firing or forced resignation, may degrade the employee's working conditions, hoping that he or she will leave "voluntarily". The employee may be moved to a different geographical location, assigned to an undesirable shift, given too few hours if part-time, demoted (or relegated to a menial task), or assigned to work in uncomfortable conditions. Other forms of manipulation may be used, such as being unfairly hostile to the employee, and punishing them for things that are deliberately overlooked with other employees. Such tactics may amount to constructive dismissal, which is illegal in some jurisdictions.

Rehire following termination

Depending on the circumstances, a person whose employment has been terminated may not be eligible for being rehired by the same employer. If the decision to terminate was the employee's, the willingness of the employer to rehire is often contingent upon the relationship the employee had with the employer, the amount of notice given by the employee prior to departure, and the needs of the employer. In some cases, when an employee departed on good terms, they may be given special priority by the employer when seeking rehire.

An employee may be terminated without prejudice, meaning the fired employee may be rehired for the same job in the future. This is usually true in the case of layoff. Conversely, a person can be terminated with prejudice, meaning an employer will not rehire the former employee for the same job in the future. This can be for many reasons: incompetence, misconduct (such as dishonesty or "zero tolerance" violations), policy violation, insubordination or "attitude" (personality clashes with peers or bosses). Termination forms ("pink slips" in the U.S. and Canada) routinely include a set of check boxes where a supervisor can indicate "with prejudice" or "without prejudice". During the Vietnam War, the CIA used this terminology with regard to its locally hired operatives. In the case of severe misconduct, it is alleged that the CIA would assassinate them or "terminate with extreme prejudice". [10]

See also

Related Research Articles

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 voluntary, it is, in effect, a termination. For example, when an employer places extraordinary and unreasonable work demands on an employee to obtain their resignation, this can constitute a constructive dismissal.

In United States labor law, at-will employment is an employer's ability to dismiss an employee for any reason, and without warning, as long as the reason is not illegal. When an employee is acknowledged as being hired "at will", courts deny the employee any claim for loss resulting from the dismissal. The rule is justified by its proponents on the basis that an employee may be similarly entitled to leave their job without reason or warning. The practice is seen as unjust by those who view the employment relationship as characterized by inequality of bargaining power.

A layoff or downsizing is the temporary suspension or permanent termination of employment of an employee or, more commonly, a group of employees for business reasons, such as personnel management or downsizing an organization. Originally, layoff referred exclusively to a temporary interruption in work, or employment but this has evolved to a permanent elimination of a position in both British and US English, requiring the addition of "temporary" to specify the original meaning of the word. A layoff is not to be confused with wrongful termination. Laid off workers or displaced workers are workers who have lost or left their jobs because their employer has closed or moved, there was insufficient work for them to do, or their position or shift was abolished. Downsizing in a company is defined to involve the reduction of employees in a workforce. Downsizing in companies became a popular practice in the 1980s and early 1990s as it was seen as a way to deliver better shareholder value as it helps to reduce the costs of employers. Research on downsizing in the US, UK, and Japan suggests that downsizing is being regarded by management as one of the preferred routes to help declining organizations, cutting unnecessary costs, and improve organizational performance. Usually a layoff occurs as a cost-cutting measure. A study of 391 downsizing announcements of the S&P 100 firms for the period 1990-2006 found, that layoff announcements resulted in substantial increase in the companies’ stock prices, and that the gain was larger, when the company had prior layoffs. The authors suggested, that the stock price manipulation alone creates a sufficient motivation for publicly-traded corporations to adopt the practice of regular layoffs.

<span class="mw-page-title-main">Termination of employment</span> End of an existing relationship between an employee and their employer

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 (resignation), or it may be at the hands of the employer, often in the form of dismissal (firing) or a layoff. Dismissal or firing is usually thought to be the employee's fault, whereas a layoff is generally done for business reasons outside the employee's performance.

In United Kingdom law, the concept of wrongful dismissal refers exclusively to dismissal contrary to the contract of employment, which effectively means premature termination, either due to insufficient notice or lack of grounds. Although wrongful dismissal is usually associated with lack of notice sometimes it can also be caused by arbitrary dismissal where no notice was required but certain grounds were specified in the contract as being the only ones available but none existed.

Unfair dismissal in the United Kingdom is the part of UK labour law that requires fair, just and reasonable treatment by employers in cases where a person's job could be terminated. The Employment Rights Act 1996 regulates this by saying that employees are entitled to a fair reason before being dismissed, based on their capability to do the job, their conduct, whether their position is economically redundant, on grounds of a statute, or some other substantial reason. It is automatically unfair for an employer to dismiss an employee, regardless of length of service, for becoming pregnant, or for having previously asserted certain specified employment rights. Otherwise, an employee must have worked for two years. This means an employer only terminates an employee's job lawfully if the employer follows a fair procedure, acts reasonably and has a fair reason.

Pregnancy discrimination is a type of employment discrimination that occurs when expectant women are fired, not hired, or otherwise discriminated against due to their pregnancy or intention to become pregnant. Common forms of pregnancy discrimination include not being hired due to visible pregnancy or likelihood of becoming pregnant, being fired after informing an employer of one's pregnancy, being fired after maternity leave, and receiving a pay dock due to pregnancy. Pregnancy discrimination may also take the form of denying reasonable accommodations to workers based on pregnancy, childbirth, and related medical conditions. Pregnancy discrimination has also been examined to have an indirect relationship with the decline of a mother's physical and mental health. Convention on the Elimination of All Forms of Discrimination against Women prohibits dismissal on the grounds of maternity or pregnancy and ensures right to maternity leave or comparable social benefits. The Maternity Protection Convention C 183 proclaims adequate protection for pregnancy as well. Though women have some protection in the United States because of the Pregnancy Discrimination Act of 1978, it has not completely curbed the incidence of pregnancy discrimination. The Equal Rights Amendment could ensure more robust sex equality ensuring that women and men could both work and have children at the same time.

Just cause is a common standard in employment law, as a form of job security. When a person is terminated for just cause, it means that they have been terminated for misconduct, or another sufficient reason. A person terminated for just cause is generally not entitled to notice severance, nor unemployment benefits depending on local laws.

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:

<span class="mw-page-title-main">Employment Rights Act 1996</span> United Kingdom Law

The Employment Rights Act 1996 is a United Kingdom Act of Parliament passed by the Conservative government to codify existing law on individual rights in UK labour law.

<span class="mw-page-title-main">Employment Relations Act 2000</span> Statute of the Parliament of New Zealand

The New Zealand Employment Relations Act 2000 is a statute of the Parliament of New Zealand. It was substantially amended by the Employment Relations Amendment Act 2001 and by the ERAA 2004.

Employee monitoring is the surveillance of workers' activity. Organizations engage in employee monitoring for different reasons such as to track performance, to avoid legal liability, to protect trade secrets, and to address other security concerns. This practice may impact employee satisfaction due to its impact on the employee's privacy. Among organizations, the extent and methods of employee monitoring differ.

Managerial prerogatives are also referred to as the functions and rights of management, is considered as the discretion of the employer or manager on how to manage its business, not bound by collective bargaining. It is a term that easily leads to widespread misunderstanding. Different circles have different interpretations of this term. When it is used in the trade unions circles, is perceived as a user's support for unilateral management power and can cause protests.When used by the management circle, It is considered as exclusive right and control right without interference. Managerial prerogatives give employers or managers the power to control the direction in which their businesses are heading. Employees basically do not have this power.

A grievance is a formal complaint that is raised by an employee towards an employer within the workplace. There are many reasons as to why a grievance can be raised, and also many ways to go about dealing with such a scenario. Reasons for filing a grievance in the workplace can be as a result of, but not limited to, a breach of the terms and conditions of an employment contract, raises and promotions, or lack thereof, as well as harassment and employment discrimination.

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

South African labour law regulates the relationship between employers, employees and trade unions in the Republic of South Africa.

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 contract of employment, or a statute provision or rule in employment law. Laws governing wrongful dismissal vary according to the terms of the employment contract, as well as under the laws and public policies of the jurisdiction.

In French Labour Law a Dismissal is the breach of the employment contract by the employer. French Labour Law stipulates that an employment contract can be terminated by either of the parties. The 2008 reform of Labour Law introduced the possibility of a negotiated termination.

The Employment Protection Act, is a labour-market regulation in Sweden. The current law was adopted and entered into the Code of Statutes in 1982, when it replaced a previous Employment Protection Act from 1974. It provides extensive protection for employees from termination and regulates some employment contracts. Swedish labour market regulation generally relies heavily on collective bargaining between trade unions and Employers' organizations. Even though several parts of the Employment Protection act can be overrun by collective agreements, it still constitutes an extensive direct state regulation.

A termination of employment in Argentina is the rescission of an employee's employment contract, decided unilaterally by the employer, with or without a cause. As the requirements to proceed with a termination of employment and the consequences of the decision are regulated by each piece of legislation, there are differences depending on the country whose legislation is to be applied. This article refers exclusively to termination of employees who, having worked in Argentina, are governed by the laws of that country.

References

  1. ↑ Congress, Senate., United States, Committee on Foreign Relations (1953). "Mutual Security Act of 1953: Hearings Before the Committee on Foreign Relations, United States Senate, Eighty-third Congress, First Session, on a Bill to Amend the Mutual Security Act of 1951, and for Other Purposes ...". Economic Assistance, American. U.S. Government Printing Office, 1953: 470.{{cite journal}}: CS1 maint: multiple names: authors list (link)
  2. ↑ Nagesh Belludi (February 3, 2010). "Business Folklore: Origin of the expression "You are fired!"" . Retrieved January 9, 2014.
  3. ↑ Macmillan Dictionary, Get/be given your cards, accessed 17 February 2021
  4. ↑ Ayto, J., and Simpson, J. (1992). The Oxford dictionary of modern slang. Oxford: Oxford University Press. ISBN   0-19-280007-8; p. 24.
  5. ↑ Leland, L.S., jr. (1980). A personal Kiwi-Yankee dictionary. Dunedin, NZ: John McIndoe Ltd. ISBN   0-86868-001-X; p. 16.
  6. ↑ "Supreme Court Confirms Doctrine of At-Will Employment". Meyers Nave. 6 August 2015. Retrieved June 21, 2018.
  7. ↑ Alain-Christian Monkam, "How to dismiss an employee in France", Village de la Justice, 2011, http://www.village-justice.com/articles/dismiss-employee-France,11040.html
  8. ↑ 10 Reasons Employees Get Fired - BeingFired.com
  9. ↑ Walker, Rob (3 August 2018). "Why 'Can I Sue My Employer?' Is Often the Wrong Question". The New York Times. Retrieved 2018-08-12. Ms. Nielsen, who is one of the authors of the recent book "Rights on Trial," a critique of workplace discrimination law, has encountered the same phenomenon in her research. "Plaintiffs' lawyers say this is the most important thing that ordinary people do not understand about the law," she said. "You do not have the right to a fair workplace. You have the right to a nondiscriminatory workplace."
  10. ↑ Douglas Valentine,The Phoenix Program, 1990.
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