Dismissal Law Research Articles

Dismissal Law in Spain

Dismissal Law in Spain

Managers’ rank & file employee coordination costs and real activities manipulation

We investigate the effect of managers' rank & file employee coordination costs on real activities manipulation (RAM). We identify exogenous variation in managers' rank & file employee coordination costs using the adoption of 99 wrongful dismissal laws across 47 U.S. states between 1970 and 1999. We first find that RAM declines when managers' rank & file employee coordination costs increase. We further document that managers’ rank & file employee coordination costs reduce decentralized RAM but affect neither centralized RAM nor centralized accrual-based earnings management, both of which are less likely to require rank & file employee coordination. Event-time tests corroborate and document the validity of the parallel trends assumption in our setting. Cross-sectional tests document predictable variation in our main result across firms and over time. Consistent with rank & file employee coordination costs constraining RAM, managers miss earnings thresholds more often after rank & file employee coordination costs increase. Our nuanced inferences inform the literature investigating factors that constrain RAM and the extent to which rank & file employees determine firm outcomes.

A Fair Deal? Justice in Dismissal in Australia

Against the historical backdrop of some protection against unfair dismissal at State level, this article explores the chequered path to ‘a fair go all round’ in Federal unfair dismissal protection for employees in Australia, initially through awards (and the foundation laid by the federal industrial tribunal) in 1984 to legislative provisions enacted by the Federal Parliament in 1993. The vicissitudes of the Federal statutory unfair dismissal regime are scrutinised: first its virtual dismantling by a conservative government in 2005 and then its revival by a Labor government in the Fair Work Act 2009 (Cth). The article analyses the nature of the unfair dismissal jurisdiction legislatively conferred on the industrial tribunal, protecting employees against ‘harsh, unjust or unreasonable’ dismissal. It argues that, while there is no clamour by employers or unions for a major overhaul of the unfair dismissal laws, legislative reform is required to promote more vigorously a ‘fair deal’ for Australian workers, especially for currently excluded categories of workers (such as gig workers and dependent contractors), and to improve access to justice in dismissal.

Legal Regulation of Dismissal in Japan

In Japan dismissals are regulated by the Article 16 of the Labour Contracts Act (LCA) enacted in 2007 which stipulated the established case law rule. It provides that ‘if a dismissal lacks objectively reasonable grounds and is not considered to be appropriate in general societal terms, it is treated as an abuse of rights and is invalid’. Under this doctrine of abusive dismissal, the effect of abusive dismissal is to makes the abusive dismissal invalid and then the courts deliver a declaratory judgment confirming the status of the dismissed worker as the worker of the employer and order of backpay. This remedial rule has a deterrent effect on arbitrary dismissals, and is the most successful aspect of Japanese unfair dismissal law. There is, however, a fatal defect. The Japanese unfair dismissal law does not have effective procedures to resolve dismissal disputes that are prompt, low cost and easy to use. The most necessary thing is to build the effective procedure to resolve dismissal disputes for all the dismissed workers. If this reform is realised, it will provide much more dismissed workers than before with the effective remedies for abusive dismissals and further a deterrent effect of the Article 16 of the LCA on arbitrary dismissals.

THE RIGHT TO A PRE-DISMISSAL HEARING IN TERMS OF THE COMMON LAW: ARE THE CIVIL COURTS MISDIRECTED?

This article explores the overlap between the unlawful termination of a contract of employment and the unfair dismissal of an employee. The Supreme Court of Appeal has in a sequence of cases developed the common-law contract of employment to include the implied right to a pre-dismissal hearing. Owing to the fact that labour legislation already regulates unfair dismissal law, this in effect creates a dual system of dispute resolution in relation to the termination of contracts of employment. The focus of this contribution is on the factors that allure dismissed employees to the civil courts and it highlights the problems that are associated with the overlap of the High Court’s and the Labour Court’s jurisdictions. Future developments are traversed and the Constitutional Court is called upon to bring an end to the development of parallel dispute resolution systems in respect of dismissal disputes.

Finding Fault in the Law of Unfair Dismissal: The Insubstantiality of Reasons for Dismissal

Abstract The question of whether an Employment Tribunal should accept the employer’s reason for a dismissal has received little attention in studies of the law of unfair dismissal. This shortage of analysis continues even though this stage holds the potential to decide the outcome of the case. The current approach to the interpretation of the five potentially fair reasons for a dismissal is to leave them undefined, allowing employers broad scope to rely upon almost any reason to justify their decision to dismiss an employee. This piece demonstrates how the established view of this stage of the fairness process is a missed opportunity and fails to deliver the full potential of the law of unfair dismissal as it was drafted. In order to protect the fundamental right not to be unjustifiably dismissed, a threshold of substantiality should run throughout the reasons for dismissal—assessed objectively by the Tribunal judge. The assertion of such a threshold is particularly necessary under the open-ended ‘some other substantial reason’ category. The piece turns then to disciplinary dismissals, arguing that the current approach results in fair dismissals, first, for minor misconduct and, second, because of conduct with no connection to the employment relationship. Two solutions to these particular problems will be put forward: a tailored legislative amendment and a contractual reading of the existing section. Both approaches would introduce an element of substantive fairness that is currently absent and place some confines on the scope of the employer’s managerial prerogative by restraining the reasons for which they may fairly dismiss.

Incompatibility as a Ground for Dismissal in Contemporary South African Law of Unfair Dismissal: A Review of Zeda Car Leasing and Other Recent Cases

Although incompatibility is not listed along with incapacity, misconduct, or operational requirements in s 188(1)(a) of the Labour Relations Act 66 of 1995 as a ground for dismissal, in practice, it has been likened to all these statutorily laid down grounds to justify dismissal and abundant case law abound to bear witness to this assertion. A cursory reading of the cases of Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk [2020] ZALAC 4; Mgijima v MEC, Department of Education, Gauteng [2014] ZALCJHB 414; Edcon Ltd v Padayachee [2018] ZALCJHB 307 and Watson v South African Rugby Union (SARU) [2017] ZALCJHB 264 where incompatibility was approached respectively, from the prism of operational requirements; incapacity and misconduct; coupled with some recent cases discussed herein, clearly indicate that incompatibility has not only covered the field, it has also acquired a pride of place in contemporary South African law of unfair dismissal. Given these circumstances, the authors recommend the insertion into s 188(1)(a)(i) by way of an amendment such that the subsection will include a fair reason ‘related to the employee’s conduct, incapacity or ‘‘incompatibility’’ ’. This will definitely clear any lingering doubts surrounding the role of incompatibility and empower the arbitrator and the Labour Court to adjudicate with a level of clarity in the law of unfair dismissal.

Industrial actions and firing regimes: How deregulating worker “Exit” reshapes worker “Voice”

Using data on more than 13000 European establishments over the 2009–2013 period, we analyze the relationship between discharge regulation and industrial actions. We empirically answer the question as whether stricter dismissal laws make EU establishments experience more frequent and intense industrial actions (work-to-rule, strikes and occupation). We find that a change from employment at-will to a regime with very strict dismissal constraints is associated with an increase in the likelihood of observing an industrial action at the establishment-level ranging between 10.1 and 11.8 percentage points, and that this effect reduces to around 6.5 percentage points when only company-specific industrial actions are considered. A correlation between discharge constraints and industrial actions is found also in a difference-in-differences analysis, where we explore quasi-experimental variations in national dismissal regulations. Although we are not able to establish causality, our findings are suggestive, as they document the possible association between layoff deregulation and the decline of union activism in Europe.

2020/37 Can the exception clause of Article 8 Rome I save a Turkish airline company from the application of Dutch dismissal law in a dispute with an Amsterdam home-based co-pilot? (NL)

2020/37 Can the exception clause of Article 8 Rome I save a Turkish airline company from the application of Dutch dismissal law in a dispute with an Amsterdam home-based co-pilot? (NL)

Dismissal Legislation and the Transition Payment in the Netherlands: Towards employment security?

The purpose of protection against dismissal is to protect the employee against unjustified dismissal, which is expected to lead to stable employment relationships and job security. In recent years, the concept of employment security has entered the world of policy and science. This article aims to contribute to the field of labour law by investigating the objectives and effects of the Dutch transition payment process in relation to the relatively new notion of employment security. To do so, the ins and outs of the Dutch transition payment process are discussed. We compare and analyse the Dutch dismissal law before and after the introduction of the Work and Security Act ( Wet werk en zekerheid (WWZ)) on 1 July 2015. We discuss the (unintended) employer and employee effects of dismissal law reform in the Netherlands and we analyse the objectives of the transition payment in relation to employment security. Based on a large-scale survey of redundant employees we shed light on the question of whether the transition payment is used for the purpose intended by the legislature. This article concludes by discussing the changes to the transition payment and dismissal compensation with the introduction of the new Balanced Labour Market Act ( Wet arbeidsmarkt in balans (WAB)) on 1 January 2020. Although the legislature has attributed a clear formal transition function to the transition payment, the transition function is lacking from a substantive law perspective and we conclude that employment security is still in its infancy in Dutch dismissal legislation.

A Comparison between Unfair Dismissal Law in Nigeria and the International Labour Organisation’s Legal Regime

The law that governs cessation of a contract of employment occupies a position of considerable importance in any developing society. Before the third alteration to the Nigerian Constitution, cessation of contracts of employment was left to reside within the private law sphere and the decision to dismiss fell within the complete hold of management through management–initiated programs to determine when, how and why a contract of employment shall cease. The motive for cessation of the contract is of no relevance to the Nigerian labour law; while the ground playing field upon which distributive conflict between the employer and the employee strives is left in the private sphere and treated as immutable by the Nigerian labour law. However, total reliance on management-initiated programs to determine cessation of an employment contract has not been so reliable. During a global pandemic, it is seen that even enlightened employers can be tempted to transform employees from high-valued human resource assets to low-valued disposable commodity. To mitigate this, the courts have started to rethink this orthodox position held to be immutable; this has brought about the concept of unfair dismissal. The methodology adopted is the qualitative method. The paper focuses on the comparison between Unfair Dismissal Law of Nigeria with that of the International Labour Organisation’s legal regime.

The Philosophy of Unfair Dismissal Law in Nigeria

In Nigeria, the past three decades have witnessed a steady growing private sector, but the relationship between employers and employees continues to be a turbulent one and a source of unending litigation. This situation is worsened by the dwindling state of the economy. Paid employment continues to constitute the major source of livelihood of many families and this has made it an important source of livelihood in majority of the households in Nigeria. However, with the employment relationship comes an inherent conflict of interest between the employer and the employee. How best to manage this conflict has been left to the different nations to determine. In Nigeria, the law governs the cessation of an employment relationship but the statute governing dismissal is seemingly still a relic of the received English law as at 1900. The failure to bring the provisions of the statute on dismissal in tandem with the current day realities has brought about a distortion of the balance of interest between the employer and employee. In a bid to ensure stability, the concept of fair dismissal evolved. The aim of this paper is to critically examine the fundamental nature, attitudes, realities, existence and theories that act as guiding principles for unfair dismissal law in Nigeria. This paper examines the evolution of the labour law jurisprudence on unfair dismissal, and its jurisprudential foundation in Nigeria. It seeks to reveal the historical, moral, and cultural basis of unfair dismissal law. The article focuses on finding the answers to such abstract questions as what is unfair dismissal law? and how do judges decide such cases?

Square peg versus a round hole? The Necessity of a Bill of Rights for Workers

The exercise of human rights is put at risk by the creation, conduct, and termination of employment relationships. For this reason, we often find that fundamental rights arguments are invoked in disputes between employers and workers and the mechanisms of labour and employment law are pressed to vindicate those rights through a process of ‘constitutionalisation’. Notably, the European Convention on Human Rights, through the doctrine of positive obligations, places important demands upon national legal systems, their legislators and their judges, to protect the rights of individuals against other private parties. Taking the law of dismissal in England & Wales as an illustrative example, this article argues that the current approach to safeguarding workers’ rights and complying with the Convention’s positive obligations is inadequate. Making adjustments to the existing structure of employment rights will always be insufficiently radical as those structures are ill-suited to performing this function, their limitations are systemic and furthermore the judiciary is unwilling to disrupt the established analytical approach. Instead, I propose and detail an alternative solution: introducing a Bill of Rights that would render the rights of the European Convention enforceable between worker and employer.

Timis v. Osipov: Personal Liability? Decision Makers and Advances in Whistleblowing

Much has been written recently about employment status including bogus self-employment, atypical workers, zero hours contracts and about vicarious liability in the law of torts and employment law. The case under discussion does not deal with these issues but with related interesting issues involving categorization of working people into employees and workers so as to determine the remedy for whistleblowing under statute and with whether liability in that area of law can be both direct and vicarious. To understand the case one needs to appreciate that the law of unfair dismissal as set out in the Employment Rights Act 1996 applies only to ‘employees’ and therefore both those classified as ‘workers’ and as independent contractors do not; however, workers, though not independent contractors dismissed solely or principally for one of the reasons which would be potentially unfair (prima facie invalid) may have a different remedy when the claim is one of whistleblowing. In relation to vicarious liability under the relevant statute, the Employment Rights Act 1996, there was on the facts of the case to be discussed no doubt that the employers were vicariously liable, but could they also be directly liable? The authority below demonstrates that because of the scheme of the Act both that a worker dismissed for whistleblowing has a remedy not for unfair dismissal because he is not an employee but for ‘detriment’, the detriment being put through a disciplinary process. This preserves the law since 1 January 1972 that remedies for unfair dismissal are granted only to those classed as employees. In respect of vicarious liability, as this commentary shows, both direct and vicarious liability are available against employers in a whistleblowing case. The consequences of these decisions are noted at the end. Personal liability, whistleblowing, unfair dismissal, compensation, termination.

THE ITALIAN WAY TO INTERNAL DEVALUATION AND SOCIAL ACTORS’ STRATEGIES AGAINST AUSTERITY AND THE FLEXIBILIZATION OF THE LABOUR MARKET

Introduction: the Italian way to internal devaluation; 1.a Precarization of labour and weakening of trade union action at company level (amendment of dismissal law); 1.b Circumvention of the CCNL by means of exceptional employment contracts; 1.c Downward competition on labour costs by means of outsourcing and value chains; 1.d Promotion of decentralized collective bargaining and its power to derogate from the law and freezing of collective bargaining in the public sector; 2. The trade union(s) strategies; 2.a Bargaining strategy; 2.b Judicial strategy; 2.c Confrontational strategy; 3. New challenges for workers and new challenges for their organization(s); 3.a Italian trade unions’ strategies; 3.b Alternative experiences of (and in favour of) precarious workers; 4. Anti-austerity protests: the involvement of trade unions and social movements; 5. Concluding remarks; Bibliography.

Regulatory Challenges of Unfair Dismissal for Gig Economy Workers in the UK

Whether because of its innovative and exciting way of doing business or because of the constant growth of its workforce, the gig economy is the talk of the day. So far when gig economy workers are discussed by legislators, journalists, businessmen and academics, it is mostly whether or not they qualify as employees, workers or self-employed. It will not be long until the attention of policymakers and gig economy employers and workers is drawn to the imminent challenge to regulate other aspects of their working relationship. Unfair dismissal is one of the many areas of law in which such workers need special provisions to accommodate their peculiarities. This paper will discuss the regulatory issues arising from applying the British unfair dismissal law to gig economy workers. It will first analyse the gig economy workforce and its relationship with platforms. It will then look at the reasons for implementing legal protection against unfair dismissal, the main features of the British law and the incompatibilities found when applying the law to different kinds of gig economy workers. The last part of the paper will suggest solutions to fix the incompatibilities found. Some of them will suggest modifying the existing law to adapt it to the needs of gig economy workers, others will suggest that the gig economy business operation needs to be modified instead. Perhaps the ideal solution is for both the law and the gig economy business model to compromise to adapt to accommodate and protect this growing class of workers.

‘I Lost My Job over a Facebook Post: Was that Fair?’ Discipline and Dismissal for Social Media Activity

Is it fair to be dismissed for social media activity, and are there any limitations to the employer’s managerial prerogative? These are the questions that this article addresses by examining the compatibility of discipline or dismissal with human rights law, with a primary focus on United Kingdom (UK) and European human rights law. It argues that UK courts and tribunals erroneously accept the lawfulness of such dismissals most of the time. This is due both to weaknesses in the English law of unfair dismissal, and to courts’ and tribunals’ limited engagement with human rights at work. Technical aspects of social media usage, with which courts and tribunals are often unfamiliar, add a further layer of complexity. Two factors make dismissals for social media activity particularly challenging for courts: first, the fact that social media are online platforms that everyone can potentially access, and hence public rather than private space; second, that expression on social media, often spontaneous and thoughtless, is not viewed as a particularly valuable form of speech. The argument of the article is that both the right to private life and the right to free speech are implicated in dismissals for social media activity, and that they should be viewed as lawful in very limited occasions, for employers should not have the right to censor the moral, political and other views and preferences of their employees even if it causes business harm.

Unfair dismissal in the Mauritius context: a comparative study

PurposeThe purpose of this study is to critically analyse the concept of unfair dismissal and to assess the extent to which the Employment Rights Act 2008 is affording protection to employees in Mauritius. The purpose of this study is to also demonstrate that as employees form an integral part of their workplace, their employment cannot be terminated without substantive and procedural fairness. The paper will provide some recommendations to cater for loopholes in existing Mauritius employment legislations.Design/Methodology/ApproachTo critically examine the topic, the black letter approach is adopted to detail legislations and judgments of courts on the subject matter. A comparative analysis with some other jurisdictions’ employment legislations is also carried out to define, explain and examine the concepts of dismissal, substantive causes such as misconduct and procedural fairness.FindingsFrom the methodologies used, it is found that a substantial reason is not sufficient to conclude whether a dismissal is fair. The law of unfair dismissal has introduced some procedural safeguards to protect the employee from being unfairly and unjustifiably dismissed. The procedural requirements act as guidelines to employers and if they are not followed properly, the dismissal will be unfair. Unfair dismissal needs to be accompanied by remedies from employers, and monetary compensation has been found to be the most appropriate remedy.Originality/ValueThis paper is amongst the first research work conducted in Mauritius that compares the law of unfair dismissal and its implications with the laws of England and South Africa. The study is carried out with a view to provide practical recommendations in this area of employment law to the relevant stakeholders concerned.

Workplace Monitoring and the Right to Private Life at Work

AbstractIn Barbulescu v Romania, the European Court of Human Rights clarified the application of the Article 8 right to private life in the workplace, and the extent of the state's positive obligations to protect the right against workplace monitoring. The decision establishes that there is an irreducible core to the right to private life at work that does not depend on an employee's reasonable expectations of privacy, and sets out clear principles for striking a fair balance between Article 8 and the employer's interests in the context of workplace monitoring. This article considers the nature of states’ positive obligation to protect human rights at work, the scope of the right to private life, and the impact of the decision on domestic law of unfair dismissal.

Pengaruh Budaya Organisasi terhadap Komitmen Organisasional Dimediasi Kepuasan Kerja (Studi pada PT. Bening Badung-Bali)

ABSTRACT
 Organizational commitment is a state in which employees take sides with the organization. High organizational commitment of employees can support the achievement of organizational goals. This study aims to determine the influence of organizational culture on organizational commitment, organizational culture to job satisfaction, job satisfaction to organizational commitment, and organizational culture to organizational commitment through mediation job satisfaction. This research was conducted at PT. Bening Big Tree Farms in 2017 with a sample of all employees who numbered 80 respondents. Data collection method used is questionnaire method and data analysis technique using Partial Least Square Test (PLS). The result of the research shows that organizational culture has positive effect on organizational commitment, organizational culture has positive effect on job satisfaction, job satisfaction has positive effect on organizational commitment, and job satisfaction is able to mediate the influence of organizational culture on organizational commitment. Organizational commitment can be enhanced by maintaining employee job satisfaction, increasing collective commitment, clarifying dismissal laws, procedures, and policies and paying attention to employee salaries.
 Keyword : organizational culture, organizational commitments, job satisfaction.