Unfair Dismissal Law Research Articles

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.

Twenty Years of the Remedy of Reinstatement in the Law of Unfair Dismissal in South Africa: Some Preliminary, Jurisprudential and Sundry Issues

Reinstatement as a remedy for unfair dismissal was known to and applied by the Industrial Court of the bygone labour relations regime of 1956. It was, however, the Labour Relations Act 66 of 1995 (LRA) that entrenched this remedy in the modern South African labour relations system designed essentially to do justice between the employer and the employee and, fundamentally, to achieve industrial justice. After two decades of the operation of the adjudicative institutions established by the 1995 Act, it is time to evaluate the ways in which the labour arbitrators, the Labour Courts and the Labour Appeal Court, have interpreted and applied the provisions of the LRA relating to reinstatement. This evaluation exercise also extends to the immense contributions of the Supreme Court of Appeal and the Constitutional Court to the jurisprudence surrounding reinstatement as an unfair dismissal remedy in contemporary South African labour law. This article starts by defining reinstatement, distinguishing the remedy of re-employment and, further, the Constitutional Court’s judicial activist innovation to the labour relations lexicon—‘instatement’. Then it settles down to tackle issues that are preliminary and jurisprudential in nature—issues that were probably not contemplated by the enabling legislation, but which have arisen in adjudication. These include resignation and its effect on reinstatement, automatic reinstatement in the form of a declaration, and whether a court is able to order either ‘interim reinstatement’ or ‘semi-urgent interim relief’. The latter part of this article examines those non-statutory obstacles to accessing the remedy of reinstatement. These include the employer’s non-compliance with the order of reinstatement, as was the issue in the protracted litigation concerning Myers v National Commissioner of the SAPS ((2013) 34 ILJ 1729 (SCA); Myers v National Commissioner of the SAPS [2014] 5 BLLR 461 (LC); Myers v National Commissioner of the SAPS [2015] ZALCCT 68); whether the Prescription Act applies to claims for reinstatement; and such sundry issues as whether arrear wages could be recovered as a judgment debt. Finally, we consider whether an employee nearing the retirement age who is unfairly dismissed is entitled to reinstatement.

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?

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.

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.

Unfair Dismissal Law and Temporary Migrant Labour in Australia

Increasing attention is being given to the exploitation of temporary migrant workers in Australia, in particular in relation to wage underpayments. But very little focus has been given to the ability of temporary migrant workers to access legal remedies under Australian employment law. This article examines whether temporary migrant workers are able to make and pursue a claim for unfair dismissal within the federal jurisdiction. As unfair dismissal law seeks to protect job security and provides an essential check on managerial prerogative, it is important that temporary migrant workers are able to access this legal avenue to protect them from arbitrary dismissal. We argue there are serious deficiencies in the application, coverage and content of federal unfair dismissal law in relation to temporary migrant workers in Australia.

Unfair Dismissal Law and Temporary Migrant Labour in Australia

Unfair Dismissal Law and Temporary Migrant Labour in Australia

The Inadequate Protection of Human Rights in Unfair Dismissal Law

Abstract Workers in the private sector have limited legal options if they believe that, by terminating the working relationship, the employer has infringed their human rights. In most cases, they must rely on an existing cause of action, notably the right not to be unfairly dismissed contained in the Employment Rights Act 1996. The provisions of the Human Rights Act 1998 reinforce the argument that unfair dismissal law should play a role in the vindication of human rights in the employment context. Is the law of unfair dismissal capable of fulfilling this role? This article will argue that it is not. It will demonstrate that there are several major obstacles to the vindication of a worker’s human rights through unfair dismissal law. It will be argued that there are three ways in which the law of unfair dismissal is inconsistent with the principles of the European Convention on Human Rights: the narrow personal scope of protection, the lax standard of review applied by the tribunals and the inadequate remedies available to claimants who are successful in their claim.

Award of Damages for Unlawful Dismissal in Uganda; The Quest for Consistency after the Employment Act of 2006

A person's employment is more often than not one of the most key things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem. For many employees, dismissal is a disaster. For some, it may make inevitable the breaking up of a community and the uprooting of homes and families. For others, and particularly older employees, may be faced with the utmost obscurity in obtaining employment at all. Loss of one's job is always a distressing event; and it can be devastating when dismissal is accompanied by bad faith. In Uganda, the employment relations were governed by a common law regime and the Employment Act, Cap 219 until 2006 when a new labour law regime was ushered in. With the advent of this regime, a number of labour claims have been decided by the High Court with notable inconsistency in principle and on the amounts and later by the established Industrial Court. This article undertakes a jurisprudential analysis of the effect, if any, that the Employment Act, Act No. 6 of 2006 and its subsequent interpretation by courts has had on the recovery of damages for unlawful or wrongful dismissal. Academic recognition of the central role that the new Employment law regime has played in the labour relations is certainly not novel. However, no academic commentator has previously analysed the body of Ugandan unlawful dismissal cases purportedly applying the common law remedy of damages in causes of action for dismissal. In addressing this lacuna, this article provides a comprehensive investigation of the case law concerning award of damages since the inception of the 2006 labour law regime and draws on this to identify and then critically assess the effects the legislation has had on the court's view on award of damages for unlawful or unfair dismissal. In doing so, the article aims to answer the following central questions: are courts justified under statute or common law in awarding general, exemplary and aggravated damages in unlawful or unfair dismissal cases? Is it time to reconsider the Supreme Court decision in Bank of Uganda v Betty Tikamanyire and Omunyokol Akol Johnson v Attorney General? This inquiry is concerned solely with the determination of damages available to dismissed employees as against their former employers. The paper does not seek to scrutinise the issue of liability in these decided cases save for where the factual matrix would assist in understanding the basis court used to award particular remedies. This article is divided into five principal parts. Following this introduction Part I examines the status of unfair dismissal law in Uganda, Part II examines the precedential basis of the common law principles that have influenced Uganda’s unlawful dismissal law especially on the remedy of damages. It assesses how common law principles have developed over time and the current position. Emphasis is placed on the cases that have been quoted in the Ugandan courts. Part III analyses a number of the leading employment law cases in respect of the award of damages. It argues that there are inconsistencies in the Ugandan courts in respect to the assessment of damages in dismissal claims and most of the cases do not accurately represent the common law position, as a result, the jurisprudential value in those cases in respect of damages is greatly diluted. It also demonstrates that retention of the ratio decidendi in the Supreme Court decisions in Bank of Uganda v Betty Tinkamanyire supra and Omunyokol v Attorney General, supra, in respect of aggravated damages and general damages respectively undermines the doctrinal coherence of contract and employment law, by imposing on the parties an artificial interpretation of the employment contract that fails to recognise the social realities of modern employment. Part IV assesses the teething problems of the newly created Industrial Court as it applies cases that have been inconsistently decided in the appellate courts. Part V draws together the precedential and more fundamental doctrinal deficiencies in the award of damages. It lays down what should be the proper approach to the application of statutory remedies provided under the Employment Act, Act No. 6 of 2006. It also lays down the new direction for the dismissed employees. The article concludes that the re-examination by the Supreme Court on the issue of assessment of damages in unlawful dismissal cases is warranted and possibly Parliament intervention is needed.

A Critical Analysis of Genuine Redundancyy Cases Under the Fair Work Act 2009 (Cth)

Under the Fair Work Act 2009 (Cth), a redundancy will not amount to unfair dismissal where it meets the definition of a ‘genuine redundancy’. This paper critically analyses decisions of the Fair Work Commission that consider the operation of this exclusion from unfair dismissal law. This is the first published paper to undertake a comprehensive scholarly analysis of these cases. This paper advances seven key arguments, ultimately demonstrating that a number of principles being applied by the Commission relating to the ‘genuine redundancy’ exclusion are, with respect, problematic. This paper also provides guidance as to how these principles should be revised in order to better reflect the goals of the legislation. Chapter I sets the foundation for these arguments by exploring the historical and theoretical underpinnings of the exclusion in order to illuminate its objectives.Chapter II analyses the cases that consider each element of the exclusion as defined in s 389. First it is argued that the interpretation given to the standard consultation clause in Ventyx Pty Ltd v Murray is correct. Second this paper undertakes a detailed analysis of the decision of TAFE v Pykett, ultimately arguing that the ‘specificity requirement’ emerging from Pykett is too onerous, whilst the ‘other work’ principle is overly broad. Chapter III analyses the cases that consider the interaction between ss 389 and 387. First it is argued that the majority approach to s 387(a)–(c) taken in UES (Int’l) Pty Ltd v Harvey is correct, and a legislative amendment is proposed in order to ensure the proper application of these provisions. Second it is argued that an unchallenged finding of a breach of the redeployment obligation should result in a finding of unfair dismissal. Third it is argued that the ‘outcomes test’ being applied by the Commission is inappropriate due to its highly speculative nature, and that the ‘natural justice’ test should be applied instead. Finally, it is argued that even where ‘genuine redundancy’ is not specifically pleaded, it should be considered in any redundancy situation.Supervisor: Pauline Bomball (nee Thai)

Judicial Reform of Unfair Dismissal Law: Recent Developments in the Range of Reasonable Responses

UK unfair dismissal law has been widely criticised for being unduly favourable to the interests of the employer, and correspondingly unhelpful to dismissed employees. Since it was first articulated in 1981, the range of reasonable responses test has obscured the statutory language establishing the right of employees not to be unfairly dismissed, and it has imposed an unwarranted barrier to employee success in claims of unfair dismissal for misconduct. The range test decrees that an employment tribunal (ET) may find a conduct dismissal unfair only if no reasonable employer would have dismissed in those circumstances, establishing the broadest possible conception of the term 'reasonable', which is the term the Employment Rights Act 1996 sets as the test for the fairness of an employer's decision to dismiss. More seriously, the test prohibits ETs from 'substituting' their own views for those of employers with respect to whether dismissal can be considered a reasonable response in the circumstances. Because of this privileging of employers' views, finding a dismissal to be unfair has exposed ETs to a disproportionate risk of reversal by higher courts, skewing the unfair dismissal system in favour of the employer by making a finding of fair dismissal the safer course for ETs. As a result, the protection provided to employees by the right not to be unfairly dismissed has been weakened.

The law of unfair dismissal and behaviour outside work

Four of the better-known unfair dismissal cases involve dismissals of employees for behaviour outside work. All four of those dismissals were held to be ‘fair’. This paper looks afresh at the subject matter of dismissals for behaviour outside work. It will argue, first, that employment tribunals should apply a separate framework to dismissals for behaviour outside work and not just apply the normal framework that is designed for dismissals for behaviour at work. Secondly, the paper will construct this separate framework to apply to dismissals for extramural behaviour. It will be argued that there should henceforth be a presumption that dismissals for behaviour outside work will be unfair unless the employer has a strong reason for thinking that the extramural behaviour of the employee will damage the business of the employer. The purpose of this paper is to suggest legal reasons for change to this area of unfair dismissal law as an addition to previously discussed normative reasons for change. In particular, the paper will develop the analogy between unfair dismissal cases on behaviour outside work and breach of personal confidence cases since the Human Rights Act 1998.