In labour law, unfair dismissal is an act of employment termination made without good reason or contrary to the country's specific legislation.
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]
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]
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:
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) [28] if it is satisfied that reinstatement is inappropriate. [29]
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," [30] which in certain cases also includes constructive dismissal) [31] can be made under the Canada Labour Code , [32] as well as similar provisions in effect in Quebec [33] and Nova Scotia, [34] all of which were introduced in the late 1970s. [35]
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. [36] 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. [37] Complaints are initially investigated by an inspector, who will then work towards a settlement within a reasonable time, [37] failing which the Minister of Labour 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." [38] Where the dismissal is determined to be unjust, the adjudicator has broad remedial authority, including ordering the payment of compensation and reinstatement to employment. [39]
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, [39] the Supreme Court of Canada ruled in 2016 that the Code's provisions effectively ousted such common law remedies. [40]
Unfair dismissal became part of French labour law in 1973, but certain other protections had been previously instituted as far back as 1892. [41]
The Labour Code (French : Code du travail) [42] 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. [43]
Where dismissal occurs on economic grounds, [44] 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. [45]
An employee may challenge a dismissal by making a complaint to the Labour Court (French : Conseil de prud'hommes). [46]
Where an employee has at least two years' service, the employer faces several claims:
Where unfair dismissal occurs because of the failure to observe the notification obligations for recall rights, the court may award: [45]
Where an employee has less than two years' service, or where the workforce has fewer than 11 employees, recall rights are not available, [51] as well as the normal remedies for unfair dismissal. [51] 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). [52] [49]
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. [53] [54]
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. [55] 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. [56]
Rules and grounds of employment termination in Poland are regulated in the Labor Code of Poland. [57]
Unjustified dismissal of an employee includes: [58]
Each employee has a right to file an appeal against termination to the Court. Available remedies are:
The amount of compensation depends on since then, the employee has been unemployed for a long time. The employee is entitled to compensation in the amount of remuneration for the period from 2 weeks to 3 months, not lower than he would receive if he worked during the notice period. If the employee has returned to work, the employer will have to pay him compensation for the period of unemployment. As in the above case, it amounts to the sum of remuneration for the period from 2 weeks to 3 months, not lower than he would have earned while working on notice. The amount of compensation of the protected persons is especially due for the entire period of unemployment – these are pregnant women, trade union members, persons in the protected period due to age.
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. [60]
Employees have the right not to be unfairly dismissed (with the exception of a number of exclusions). [61] 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). [62] 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. [63]
In 2011, Aikens LJ summarized the jurisprudence on what constitutes an unfair dismissal: [64]
In employment law, constructive dismissal occurs when an employee resigns due to the employer creating a hostile work environment. This often serves as a tactic for employers to avoid payment of statutory severance pay and benefits. In essence, although the employee resigns, the resignation is not truly voluntary but rather a response to intolerable working conditions imposed by the employer. These conditions can include unreasonable work demands, harassment, or significant changes to the employment terms without the employee’s consent.
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.
Australian labour law sets the rights of working people, the role of trade unions, and democracy at work, and the duties of employers, across the Commonwealth and in states. Under the Fair Work Act 2009, the Fair Work Commission creates a national minimum wage and oversees National Employment Standards for fair hours, holidays, parental leave and job security. The FWC also creates modern awards that apply to most sectors of work, numbering 150 in 2024, with minimum pay scales, and better rights for overtime, holidays, paid leave, and superannuation for a pension in retirement. Beyond this floor of rights, trade unions and employers often create enterprise bargaining agreements for better wages and conditions in their workplaces. In 2024, collective agreements covered 15% of employees, while 22% of employees were classified as "casual", meaning that they lose many protections other workers have. Australia's laws on the right to take collective action are among the most restrictive in the developed world, and Australia does not have a general law protecting workers' rights to vote and elect worker directors on corporation boards as do most other wealthy OECD countries.
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.
The Canada Labour Code is an Act of the Parliament of Canada to consolidate certain statutes respecting labour. The objective of the Code is to facilitate production by controlling strikes & lockouts, occupational safety and health, and some employment standards.
WorkChoices was the name given to changes made to the federal industrial relations laws in Australia by the Howard government in 2005, being amendments to the Workplace Relations Act 1996 by the Workplace Relations Amendment Act 2005, sometimes referred to as the Workplace Relations Amendment Act 2005, that came into effect on 27 March 2006.
A severance package is pay and benefits that employees may be entitled to receive when they leave employment at a company unwilfully. In addition to their remaining regular pay, it may include some of the following:
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.
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.
Iceland Frozen Foods Ltd v Jones [1983] ICR 17 is a UK labour law case, concerning unfair dismissal, now governed by the Employment Rights Act 1996.
Williams v Compair Maxam Ltd [1982] ICR 156 is a UK labour law case, concerning unfair dismissal, now governed by the Employment Rights Act 1996.
Polkey v AE Dayton Services Ltd [1987] UKHL 8 is a UK labour law case, concerning unfair dismissal, now governed by the Employment Rights Act 1996.
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.
The Fair Work Act 2009(Cth) is an Act of the Parliament of Australia, passed by the Rudd government to reform the industrial relations system of Australia. Replacing the Howard government's WorkChoices legislation, the Act established Fair Work Australia, later renamed the Fair Work Commission.
The National Employment Standards (NES) is a set of eleven minimum entitlements for employees in Australia who are covered by the Fair Work Act 2009. An award, enterprise agreement, other registered agreement or employment contract cannot provide for conditions that are less than the national minimum wage or the National Employment Standards and they can not be excluded. The NES have applied to employees since 1 January 2010, having replaced the previous five entitlement standard under the WorkChoices legislation.
The law for workplace bullying is given below for each country in detail. Further European countries with concrete antibullying legislation are Belgium, France, and The Netherlands.
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.
Commonwealth Bank of Australia v Barker is a leading Australian judgment of the High Court which unanimously and firmly rejected the proposition that contracts of employment in Australia should contain an implied term of mutual trust and confidence.
Unfair dismissal in Australia is the right to not be unfairly dismissed from work in the Fair Work Act 2009. This is a core part of Australian labour law, and refers to an unlawful act of employment termination due to it being an unfair action on the employee by the employer.
