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.

Labour law is the area of law most commonly relating to the relationship between trade unions, employers and the government.

Contents

Situation per country

Australia

Australia 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. [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. [2] [3] This remedy however was generally only available in the state tribunals. A similar definition existed at the Commonwealth level, [4] however it was considerably limited by the requirement under the Constitution to establish an inter-state dispute. [5] The ability for an individual to seek relief from unfair dismissal was first established in a statutory scheme in South Australia in 1972, [6] [7] followed thereafter by Western Australia, [8] Queensland, [9] New South Wales [10] and Victoria [11] in the early 1990s. [12]

Australia Country in Oceania

Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. It is the largest country in Oceania and the world's sixth-largest country by total area. The neighbouring countries are Papua New Guinea, Indonesia, and East Timor to the north; the Solomon Islands and Vanuatu to the north-east; and New Zealand to the south-east. The population of 25 million is highly urbanised and heavily concentrated on the eastern seaboard. Australia's capital is Canberra, and its largest city is Sydney. The country's other major metropolitan areas are Melbourne, Brisbane, Perth, and Adelaide.

South Australia State of Australia

South Australia 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 983,482 square kilometres (379,725 sq mi), it is the fourth-largest of Australia's states and territories by area, and fifth largest by population. It has a total of 1.7 million people, and its population is the second most highly centralised in Australia, after Western Australia, with more than 77 percent of South Australians living in the capital, Adelaide, or its environs. Other population centres in the state are relatively small; Mount Gambier, the second largest centre, has a population of 28,684.

Western Australia State in Australia

Western Australia is a state occupying the entire western third of Australia. It is bounded by the Indian Ocean to the north and west, and the Southern Ocean to the south, the Northern Territory to the north-east, and South Australia to the south-east. Western Australia is Australia's largest state, with a total land area of 2,529,875 square kilometres, and the second-largest country subdivision in the world, surpassed only by Russia's Sakha Republic. The state has about 2.6 million inhabitants – around 11 percent of the national total – of whom the vast majority live in the south-west corner, 79 per cent of the population living in the Perth area, leaving the remainder of the state sparsely populated.

Protection from unfair dismissal at the Commonwealth level was enhanced in 1984 by the Commonwealth Conciliation and Arbitration Commission with its ruling in the Termination, Change and Redundancy Case, [2] [13] 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. [14] [15] [16] The Parliament of Australia later extended the reach of protection from unfair dismissal with the passage of the Industrial Relations Reform Act 1993, [17] which was based on the external affairs power and the ILO Termination of Employment Convention, 1982 . [18] [19]

High Court of Australia supreme court

The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.

Parliament of Australia legislative branch of the Commonwealth of Australia

The Parliament of Australia is the legislative branch of the government of Australia. It consists of three elements: the Crown, the Senate and the House of Representatives. The combination of two elected chambers, in which the members of the Senate represent the states and territories while the members of the House represent electoral divisions according to population, is modelled on the United States Congress. Through both chambers, however, there is a fused executive, drawn from the Westminster system.

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 current Australian law, unfair dismissal occurs where the Fair Work Commission, acting under section 385 of the Fair Work Act 2009 , [20] [21] determines that:

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 Australia. Operations commenced on 1 July 2009. It is the successor of the Australian Industrial Relations Commission, and also performs functions previously performed by the Workplace Authority and the Australian Fair Pay Commission. Since March 2012, Iain JK Ross has been the President of FWC, and Bernadette O'Neill is its current General Manager. As of 29 May 2019, it operates under the portfolio of the Australian Attorney-General, the Hon. Christian Porter MP.

Fair Work Act 2009

The Fair Work Act 2009 is an Australian law passed by the Rudd Government after coming into power in 2007 to reform the industrial relations system in Australia. It replaced the previous Howard Government's WorkChoices legislation. It started operation on 1 July 2009.

  1. a person has been dismissed; [22]
  2. the dismissal was harsh, unjust or unreasonable; [23]
  3. it was not consistent with the Small Business Fair Dismissal Code; [24] [25] and
  4. it was not a case of genuine redundancy. [26]

If the Fair Work Commission determines that a dismissal was unfair, the Commission must decide whether to order reinstatement or compensation. [27] 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. [28]

The scope of coverage is quite broad. The Commonwealth has declared that all employers falling within its jurisdiction are subject to the scheme, including: [29]

In addition, the States have delegated certain classes of employers by virtue of the Constitution's referral power:

Classes of referred employers, by State [29]
Class Flag of New South Wales.svg NSW Flag of Queensland.svg QLD Flag of South Australia.svg SA Flag of Tasmania.svg TAS Flag of Victoria (Australia).svg VIC Flag of Western Australia.svg WA
Private employers [a 1] Green check.svgGreen check.svgGreen check.svgGreen check.svgGreen check.svg
State government employers [a 1] Green check.svg [a 2]
Local government employers [a 1] Green check.svgGreen check.svg [a 2]
  1. 1 2 3 which are not already regulated as constitutional corporations
  2. 1 2 except for law enforcement officials and executives in the public sector

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), [30] for which one or more or the following conditions must apply: [31]

  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. [32]

Where the Fair Work Act does not apply, relief from unfair dismissal may arise under State laws. [33] In Western Australia, recourse may be available from the Western Australian Industrial Relations Commission. [34] [35]

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," [36] which in certain cases also includes constructive dismissal) [37] can be made under the Canada Labour Code , [38] as well as similar provisions in effect in Quebec [39] and Nova Scotia, [40] all of which were introduced in the late 1970s. [41]

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. [42] 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. [43] Complaints are initially investigated by an inspector, who will then work towards a settlement within a reasonable time, [43] 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." [44] Where the dismissal is determined to be unjust, the adjudicator has broad remedial authority, including ordering the payment of compensation and reinstatement to employment. [45]

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, [45] the Supreme Court of Canada ruled in 2016 that the Code's provisions effectively ousted such common law remedies. [46]

France

Unfair dismissal became part of French labour law in 1973, but certain other protections had been previously instituted as far back as 1892. [47]

The Labour Code (French : Code du travail) [48] governs the procedure under which dismissal (French : licenciement) [lower-alpha 1] 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. [49]

Where dismissal occurs on economic grounds, [50] 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. [51]

An employee may challenge a dismissal by making a complaint to the Labour Court (French : Conseil de prud'hommes). [52]

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. [53]
  • 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 [54] [55] The employer will also be ordered to repay any unemployment benefits the employee may have received, to a maximum of six months' paid. [56]

Where unfair dismissal occurs because of the failure to observe the notification obligations for recall rights, the court may award: [51]

  • 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, [57] as well as the normal remedies for unfair dismissal. [57] 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). [58] [55]

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. [59] [60]

Namibia

Unfair dismissal in Namibia is defined by the Labour Act, 2007, under which the employer has the burden of the proof that a dismissal was fair. [61] 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. [62]

United Kingdom

After the release of the Donovan Report in 1968, the British Parliament passed the Industrial Relations Act 1971 which introduced the concept of unfair dismissal into UK law and its enforcement by the National Industrial Relations Court. The Trade Union and Labour Relations Act 1974 abolished the court and replaced it with a network of industrial tribunals (later renamed employment tribunals). The scheme is currently governed by Part X of the Employment Rights Act 1996. [63]

Employees have the right not to be unfairly dismissed (with the exception of a number of exclusions). [64] Following discussions with an employer, an employee can agree not to pursue a claim for unfair dismissal if they reach a settlement agreement (historically a compromise agreement). [65] 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. [66]

In 2011, Aikens LJ summarized the jurisprudence on what constitutes an unfair dismissal: [67]

  1. 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.
  2. 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.
  3. 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).
  4. 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.
  5. 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.
  6. 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".
  7. 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.
  8. 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

Further reading

Notes

  1. the term congédiement is used in Canada, where licenciement only refers to a layoff

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References

  1. Such as Commonwealth Conciliation and Arbitration Act 1904 (Cth) s9(1).
  2. 1 2 Southey 2015, p. 152.
  3. Such as the definition of "industrial matters" in the Industrial Arbitration Act 1901 (NSW) s 2.
  4. Commonwealth Conciliation and Arbitration Act 1904 (Cth) s4.
  5. R v Gough; Ex parte Cairns Meat Export Co Pty Ltd [1962] HCA 56 , (1962) 108 CLR 343.
  6. Chapman, Anna (2009). "10: The Decline and Restoration of Unfair Dismissal Rights". In Forsyth, Anthony; Stewart, Andrew (eds.). Fair Work: The New Workplace Laws and the Work Choices Legacy. Sydney: Federation Press. p. 208. ISBN   978-1-86287-736-8.
  7. Industrial Conciliation and Arbitration Act, 1972 (SA) (No 125 of 1972), s. 15(1)(e)
  8. Industrial Relations Amendment Act 1993 (WA) (No 15 of 1993), ss. 67
  9. Industrial Relations Act 1990 (Qld) No 28 of 1990, s. 2.2(3)(c), whose scope was later extended by the Industrial Relations Reform Act 1994 (Qld) No 12 of 1994
  10. Industrial Arbitration (Unfair Dismissal) Amendment Act 1991, (NSW) No 11 of 1991, whose scope was later extended by the Industrial Relations Act 1996, (NSW) No 17 of 1996, Part 6
  11. Employee Relations Act 1992, (Vic) No 83 of 1992, Part 5, Division 1
  12. Voll 2005, p. 538.
  13. Termination, Change and Redundancy Case, (1984) 8IR34 (2 August 1984).
  14. Southey 2015, p. 153.
  15. Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63 , (1987) 163 CLR 656.
  16. Re Federated Storemen & Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd [1989] HCA 10 , (1989) 166 CLR 311.
  17. "Industrial Relations Reform Act 1993".  No. 109 of 1993.
  18. Voll 2005, p. 537.
  19. The extent of the external affairs power had been determined by the High Court in Commonwealth v Tasmania ("Tasmanian Dam case") [1983] HCA 21 , (1983) 158 CLR 1.
  20. Fair Work Act 2009 (Cth) s 385
  21. "Unfair dismissal". Fair Work Commission . Retrieved 25 July 2016.
  22. within the meaning of the Fair Work Act 2009 (Cth) s 386
  23. within the meaning of the Fair Work Act 2009 (Cth) s 387
  24. "Small Business Fair Dismissal Code". Fair Work Commission . Retrieved 25 July 2016.
  25. Fair Work Act 2009 (Cth) s 388
  26. within the meaning of the Fair Work Act 2009 (Cth) s 389
  27. Fair Work Act 2009 (Cth) s 390
  28. Regional Express Holdings Limited trading as REX Airlines [2010] FWAFB 8753 at par. 23(12 November 2010)
  29. 1 2 "Benchbook: Unfair Dismissals" (PDF). Fair Work Commission. July 2016. pp. 25–27.
  30. Fair Work Act 2009 (Cth) s 383
  31. Fair Work Act 2009 (Cth) s 382
  32. as determined under the Fair Work Act 2009 (Cth) s 333
  33. "Termination of Employment: National Guidelines for Managers and Supervisors in Australia". Clayton Utz. 2015.
  34. "Unfair Dismissals and Contractual Entitlements". Western Australian Industrial Relations Commission . Retrieved 25 July 2016.
  35. Industrial Relations Act 1979 (WA) s 23A
  36. CLC, s. 240
  37. "Unjust Dismissal". Employment and Social Development Canada. January 5, 2016.
  38. Canada Labour Code , R.S.C. 1985, c. L-2, Part III, Div. XIV
  39. Act respecting labour standards, CQLR, c. N‑1.1, ss. 82, 82.1(3), 124, 126; applying to those who 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)
  40. Labour Standards Code, R.S.N.S. 1989, c. 246, ss. 6, 21, 23, 71 and 72, 78; applying to those who have worked for at least ten years who have been discharged or suspended "without just cause."
  41. Act to amend the Canada Labour Code, S.C. 1977‑78, c. 27, s. 21; Act respecting labour standards, S.Q. 1979, c. 45, s. 124; Act to Amend Chapter 10 of the Acts of 1972, the Labour Standards Code, S.N.S. 1975, c. 50, s. 4
  42. Ruslim 2014, p. 5.
  43. 1 2 CLC, s. 241
  44. CLC, s. 242
  45. 1 2 Ruslim 2014, p. 6.
  46. 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)
  47. Voize-Valayre, Roland (1991). "The French Law of Unjust Dismissals". New York University Journal of International Law and Politics . New York University. 23 (2): 519–598.
  48. Code du travail (in French)
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  50. "La définition du licenciement pour motif économique" [Definition of dismissal on personal grounds]. travail-emploi.gouv.fr (in French). Retrieved August 9, 2016.
  51. 1 2 "La priorité de réembauche" [The priority for recall]. travail-emploi.gouv.fr (in French). Retrieved August 9, 2016.
  52. "Le conseil de prud'hommes" [The Labour Court]. travail-emploi.gouv.fr (in French). December 8, 2015. Retrieved August 8, 2016.
  53. Code du travail, art. L1235-2
  54. Code du travail, art. L1235-3
  55. 1 2 "Le licenciement pour motif personnel : les causes possibles" [Permissible reasons for dismissal on personal grounds]. travail-emploi.gouv.fr (in French). September 17, 2015. Retrieved August 9, 2016.
  56. Code du travail, art. L1235-4
  57. 1 2 Code du travail, art. L1235-14
  58. Code du travail, art. L1235-5
  59. Code du travail, art. L1234-9, R1234-2
  60. "L'indemnité légale de licenciement" [Severance pay]. travail-emploi.gouv.fr (in French). August 3, 2016. Retrieved August 8, 2016.
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  62. "Labour Act, 2007". s. 33, Act No. 11 of 2007.
  63. UK Parliament . Employment Rights Act 1996 as amended (see also enacted form ), from legislation.gov.uk .
  64. Dismissal: Your Rights, UK.Gov
  65. "Settlement agreements". Acas . Retrieved August 2, 2016.
  66. ERA 1996, s. 203
  67. Orr v Milton Keynes Council [2011] EWHC Civ 62 at para. 78, [2011] 4 All ER 1256(1 February 2011)