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.
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.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. This remedy however was generally only available in the state tribunals. A similar definition existed at the Commonwealth level, however it was considerably limited by the requirement under the Constitution to establish an inter-state dispute. The ability for an individual to seek relief from unfair dismissal was first established in a statutory scheme in South Australia in 1972, followed thereafter by Western Australia, Queensland, New South Wales and Victoria in the early 1990s.
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 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 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,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. The Parliament of Australia later extended the reach of protection from unfair dismissal with the passage of the Industrial Relations Reform Act 1993, which was based on the external affairs power and the ILO Termination of Employment Convention, 1982 .
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.
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 ,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.
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.
If the Fair Work Commission determines that a dismissal was unfair, the Commission must decide whether to order reinstatement or compensation.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.
The scope of coverage is quite broad. The Commonwealth has declared that all employers falling within its jurisdiction are subject to the scheme, including:
In addition, the States have delegated certain classes of employers by virtue of the Constitution's referral power:
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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),for which one or more or the following conditions must apply:
Where the Fair Work Act does not apply, relief from unfair dismissal may arise under State laws.In Western Australia, recourse may be available from the Western Australian Industrial Relations Commission.
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," which in certain cases also includes constructive dismissal) can be made under the Canada Labour Code , as well as similar provisions in effect in Quebec and Nova Scotia, all of which were introduced in the late 1970s.
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.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. Complaints are initially investigated by an inspector, who will then work towards a settlement within a reasonable time, 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." Where the dismissal is determined to be unjust, the adjudicator has broad remedial authority, including ordering the payment of compensation and reinstatement to employment.
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,the Supreme Court of Canada ruled in 2016 that the Code's provisions effectively ousted such common law remedies.
Unfair dismissal became part of French labour law in 1973, but certain other protections had been previously instituted as far back as 1892.
The Labour Code (French : Code du travail) governs the procedure under which dismissal (French : licenciement) 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.
Where dismissal occurs on economic grounds,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.
An employee may challenge a dismissal by making a complaint to the Labour Court (French : Conseil de prud'hommes).
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:
Where an employee has less than two years' service, or where the workforce has fewer than 11 employees, recall rights are not available, : licenciement abusif).as well as the normal remedies for unfair dismissal. 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
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.
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.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.
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.
Employees have the right not to be unfairly dismissed (with the exception of a number of exclusions).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). 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.
In 2011, Aikens LJ summarized the jurisprudence on what constitutes an unfair dismissal:
United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK benefit from a minimum charter of employment rights, which are found in various Acts, Regulations, common law and equity. This includes the right to a minimum wage of £8.21 for over 25-year-olds under the National Minimum Wage Act 1998. The Working Time Regulations 1998 give the right to 28 days paid holidays, breaks from work, and attempts to limit excessively long working hours. The Employment Rights Act 1996 gives the right to leave for child care, and the right to request flexible working patterns. The Pensions Act 2008 gives the right to be automatically enrolled in a basic occupational pension, whose funds must be protected according to the Pensions Act 1995.
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.
The Australian Industrial Relations Commission (AIRC), known from 1956 to 1973 as the Commonwealth Conciliation and Arbitration Commission and from 1973 to 1988 as the Australian Conciliation and Arbitration Commission, was a tribunal with powers under the Workplace Relations Act 1996 that existed from 1956 until 2010. It was the central institution of Australian labour law. The AIRC replaced a previous system of industrial courts, which broadly speaking, was engaged in the same functions, but with superior independence and powers.
Australian labour law concerns Commonwealth, state, and common law on rights and duties of workers, unions and employers in Australia. Australian labour law, has a dual structure, where some employment issues and relationships are governed by Commonwealth laws, and others are governed by state laws or the common law. It shares a heritage with laws across the Commonwealth of Nations, UK labour law and standards set by the International Labour Organization, the Australian legislature and courts have a built a comprehensive charter of rights at work.
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, that came into effect on 27 March 2006.
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.
O'Kelly v Trusthouse Forte plc  ICR 728 was a UK labour law case, in which a bare majority held that a requirement for a contract is "mutuality of obligation" between the parties, which was thought to mean an ongoing duty to offer and accept work. It has been consistently doubted, and its outcome reversed by legislation, and its reasoning superseded by Autoclenz Ltd v Belcher, which states that the only "mutual" obligations that are required is the consideration of work for a quid pro quo.
The Royal Commission on Trade Unions and Employers’ Associations was an inquiry into the system of collective UK labour law, chaired by Lord Donovan and heavily influenced by the opinions of Hugh Clegg. Its report, known as the "Donovan Report", was issued in 1968.
Western Excavating (ECC) Ltd v Sharp  ICR 221 is a UK labour law case, concerning unfair dismissal, now governed by the Employment Rights Act 1996.
Williams v Compair Maxam Ltd  ICR 156 is a UK labour law case, concerning unfair dismissal, now governed by the Employment Rights Act 1996.
Unfair dismissal in Namibia is defined by the Namibian Labour Act of 2007. The burden of the proof that a dismissal was fair lies with the employer.
South African labour law regulates the relationship between employers, employees and trade unions in the Republic of South Africa.
A fixed-term contract is a contractual relationship between an employee and an employer that lasts for a specified period. These contracts are usually regulated by different countries' labour laws, to ensure that employers still fulfill basic labour rights regardless of a contract's form, particularly unjust dismissal. Generally, fixed-term contracts will automatically be deemed to have created a permanent contract, subject to the employer's right to terminate employment on reasonable notice for a good reason. In the European Union the incidence of fixed-term contracts ranges from 6% in the UK to 23% in Spain, with Germany, Italy and France between 13% and 16%.
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 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.
Abernethy v Mott, Hay and Anderson  ICR 323 is a UK labour law case, concerning unfair dismissal.
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.