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What Makes Dismissal Unfair?

Dismissal is a significant event in an employment relationship, and it must be carried out in a fair and lawful manner. Unfair dismissal occurs when an employee's employment is terminated in a way that breaches employment laws and regulations or fails to adhere to principles of fairness and...

August 30, 2023

Dismissal is a significant event in an employment relationship, and it must be carried out in a fair and lawful manner. Unfair dismissal occurs when an employee’s employment is terminated in a way that breaches employment laws and regulations or fails to adhere to principles of fairness and procedural justice. In this article, we will explore the key factors that can make a dismissal unfair.

No Valid Reason for Dismissal

One of the primary factors that can render a dismissal unfair is the absence of a valid reason. Employers must have a lawful and justifiable basis for terminating an employee’s contract. Valid reasons for dismissal may include poor performance, misconduct, redundancy, or a genuine operational requirement. If an employer cannot demonstrate a valid reason, the dismissal may be considered unfair.

Lack of Proper Procedures

A fair dismissal necessitates adherence to proper procedures. Employers must follow a fair and reasonable process when considering termination. This includes providing the employee with adequate notice, conducting a fair investigation, giving the employee an opportunity to respond to allegations, and allowing the employee to have a support person present during any disciplinary proceedings. Failure to follow these procedures can render a dismissal unfair.

Discrimination or Unlawful Bias

If an employee is dismissed based on discriminatory grounds, such as their race, gender, age, religion, disability, or any other protected characteristic, the dismissal is likely to be deemed unfair and in violation of anti-discrimination laws. Employers must ensure that dismissals are not driven by unlawful bias or discriminatory motives.

Failure to Provide Proper Notice or Pay

When terminating an employee, employers are generally required to provide adequate notice or pay in lieu of notice, as prescribed by employment laws or the terms of the employment contract. If an employer fails to provide the required notice period or appropriate compensation, the dismissal may be considered unfair.

Inadequate Opportunity for Improvement

Before resorting to dismissal, employers should typically provide employees with an opportunity to improve their performance or address misconduct through warnings, performance improvement plans, or relevant training and support. Failing to offer employees a fair opportunity to rectify issues or improve their performance can contribute to the unfairness of a dismissal.

Retaliation or Whistleblower Protection

Dismissal can also be deemed unfair if it is in retaliation to an employee exercising their workplace rights or blowing the whistle on illegal activities within the organisation. Employment laws often provide protection for whistleblowers, and retaliatory dismissals can result in legal consequences for employers.

Lack of Procedural Fairness

Procedural fairness is a fundamental aspect of a fair dismissal. It requires employers to provide employees with a fair hearing, an opportunity to respond to allegations or concerns, and the right to present their case. Denying an employee their right to procedural fairness, such as by not allowing them to provide their side of the story or not considering their defence, can render a dismissal unfair.

Dismissal must be carried out in a fair and lawful manner to maintain a just and equitable employment relationship. Unfair dismissal occurs when an employee’s termination breaches employment laws, fails to adhere to proper procedures, lacks valid reasons, involves discrimination or bias, or denies employees their rights to procedural fairness and opportunity for improvement. Employers should familiarise themselves with applicable employment laws, establish fair procedures, and treat employees with dignity and respect throughout the dismissal process to avoid unfair dismissals and potential legal consequences.

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