Unfair Dismissal Research Articles

The Impact of Decree 70/2023 on Labor Regulation and Industrial Relations in Argentina: A Legal and Economic Analysis

Decree 70/2023, issued by the Argentine government, addresses critical issues in labor and industrial relations amidst ongoing economic and social challenges. This study evaluates the decree’s impact on labor regulations, focusing on minimum wage standards, protection against unfair dismissal, and dispute resolution mechanisms. Utilizing a mixed-methods approach, both qualitative and quantitative analyses were conducted. Qualitative methods included legal document reviews and expert interviews, while quantitative methods involved assessing changes in wage levels, unemployment, and productivity. Key findings indicate that the decree’s increase in minimum wage aims to enhance worker welfare and stimulate economic growth, but poses challenges for employers, particularly small and medium-sized enterprises. Stricter procedures and improved compensation for layoffs are expected to reduce job insecurity and foster fairer employment practices, though these measures may raise operational costs and administrative burdens for businesses. Additionally, the new dispute resolution mechanisms, which emphasize mediation and arbitration, are designed to resolve conflicts more efficiently and transparently. However, consistent implementation and oversight remain critical challenges. The study concludes that while Decree 70/2023 represents a significant step towards better labor conditions and industrial relations in Argentina, its success will depend on rigorous enforcement and stakeholder cooperation. Further research should focus on the long-term effects of these regulations on Argentina’s labor market and economic stability, as well as continuous evaluation to refine these policies for optimal outcomes.

A human resource professional perspective of strategies to accommodate employees with mental health conditions in the workplace in South Africa.

The South African Labour Relations Act, specifically the Code of Good Practice (CGP) advocates against the discrimination and unfair dismissal of individuals with mental health conditions in the workplace. However, little is known about the implementation of these national policies within the workplace, especially from the perspective of the employer rather than the employee. The aim of this study was to explore the experiences and perceptions of how human resource practitioners accommodate and support individuals with mental health conditions in the workplace. Eleven participants (Human Resource Professionals) participated in the study. The researchers utilized semi-structured interviews where the data was analysed by means of thematic analysis to formulate themes. Three themes emerged depicting the participants' experiences and perceptions of barriers and facilitators which influenced their return to work: The themes that emerged through thematic analysis consisted of 1) Challenges perceived by Human Resource personnel that influences work participation; 2) The influence that workplace accommodations and support structures have on the work participation; 3) The prevalence of policies and laws that are available in theworkplace. The study highlighted that Human Resource Professionals struggle to interpret and implement labor related polices that aid in employing individuals with mental health conditions in the workplace. It is important to implement strategies that will assist Human Resource practitioners in understanding how to implement such policies to successfully accommodate individuals with mental health conditions in the workplace.

From Discrimination to Dismissal: Navigating Obstacles on the Path to Workplace Justice

Abstract This article explores the challenges faced by employees in the Czech Republic when seeking legal redress in cases of discrimination and unfair dismissal. It emphasizes the importance of accessible legal recourse as a means to rectify individual grievances and reinforce equitable employment practices. In the context of discrimination, the article discusses challenges such as low awareness of anti-discrimination rights and the ancillary nature of sanctions. Recommendations include aligning the Anti-Discrimination Act with the Civil Code, empowering NGOs or the Ombudsman to initiate lawsuits in the public interest, and raising awareness among potential victims. In the section on unfair dismissal, the article outlines the complex process involved in disputing terminations from an employee’s perspective. It discusses obstacles such as complex, costly, and lengthy legal procedures and the requirement for reinstatement. These challenges contribute to the low number of employment lawsuits in the Czech Republic. Recommendations for improvement include enhancing the visibility of court actions, providing free or subsidized legal advice, shifting the focus of lawsuits towards monetary compensation, promoting mediation, and expediting proceedings. The article identifies common challenges in discrimination and unfair dismissal cases in the Czech Republic, highlighting the need for reforms to improve access to justice, reduce financial barriers, expedite legal proceedings, and enhance the dissuasive impact of remedies. These reforms are seen as essential for creating a fair and equitable workplace environment for all employees in the country.

A Legal Conundrum - The Duty to Reasonably Accommodate: A Comment on Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC)

Persons with disabiliites are a historically marginalised minority, but they do possess the capacity to make a valuable contribution in the workplace. Disabilty in no way dimisses the right of individuals to be employed and to make a contribution to the labour market and the economy at large. Recent case law suggests that the duty to reasonably accommodate disabled respondents remains a conundrum for both respondents and employers in South Africa. In Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC) the Labour Appeal Court (LAC) overturned a judgment by the Labour Court that found that Legal Aid unfairly discriminated against a respondent with depression. In 2018, the Labour Court ordered Legal Aid to reinstate Mr Jansen in that it had acted unfairly as his depression was most likely the true cause for his misconduct. On appeal, the LAC emphasised that in order to prove automatic unfair dismissal an applicant must prove both factual and legal causation. The LAC further found that the most dominant reason for Mr Jansen's dismissal was his misconduct and not his depression. Nonetheless, the LAC emphasised that depression is a prevalent illness in the current work environment and that all employers have a duty to deal with depression in a sympathetic manner and were reminded of their obligation to investigate the disability fully, to consider reasonable accommodation and to consider alternatives short of dismissal. Respondents were also reminded of the fact that they need to co-operate with their employers. Whilst South Africa has made significant progress in enacting legislation, codes, and guidelines to lay the foundation for reasonable accommodation, role-players, with specific reference to employers and the judiciary, often overlook these detailed guidelines, especially in cases where the employee suffers from depression. Disabilty is often used interchangeably with incapacity, which is problematic. This article argues that employers should follow a broad interpretation of the guidelines contained in the Code of Good Practice: Key Aspects on the Employment of People with Disabilities (2002), as well as the Technical Assistance Guidelines. Multi-party consultations and investigations need to be conducted, with the assistance of experts, if needs be. It is further suggested that until South Africa has targeted legislation and policies which make disability management functions mandatory, reasonable accommodation will remain a conundrum.

중앙노동위원회의 재심판정에 대한 취소소송의 가구제

Whether it is an individual labor relationship or a collective labor-management relationship, these disputes have a civil legal nature, so they naturally fall under the realm of civil procedures. However, the Labor Relations Commission was established to provide quick and simple rights relief, and since the decisions of the Labor Relations Commission were in the nature of disposition, ultimately, lawsuits filed through the Labor Relations Commission fell under the Administrative Suit. Accordingly, Revocation Litigation for the National Labor Relations Commission's decision on review is formally an administrative suit that contests the illegality of the Labor Relations Commission's decision, and the Administrative Litigation Act is applied. However, in reality, it has a very unique structure in which labor law is applied in that it deals with legal disputes between workers (or trade unions) and employers. Meanwhile, under the current law, there is no system that guarantees the legal status of the plaintiff not only at the Labor Relations Commission stage but also at the Administrative Suit stage. Accordingly, cases where Provisiona relief is possible when filed through a civil procedure become impossible when filed through an Administrative Suit, making the legal status of workers unstable. Additionally, it is very difficult to meet the requirements for Suspension of Execution, which is Provisiona relief under the Administrative Litigation Act, and even if the requirements are met, there is usually no benefit in applying for Suspension of Execution for disposition of refusal. And with regard to provisional disposition, the Supreme Court does not allow provisional disposition in Revocation Litigation on the grounds that there is no provision for provisional disposition in the Administrative Litigation Act. Therefore, if a worker who has been unfairly dismissed by an employer disputes the validity of the dismissal with an Administrative Suit or files a lawsuit to confirm employee status, he or she can apply for provisional disposition. However, the reality is that if you go through the Labor Relations Commission and file a Revocation Litigation for the National Labor Relations Commission's decision on review with the Administrative Suit, you cannot apply for any Provisiona relief. Our Constitution recognizes the people's right to seek trial as one of their fundamental rights. This means that appropriate rights relief must be provided through trial to citizens whose rights have been violated, and that appropriate rights relief is provided means that the conclusion desired by the plaintiff must be reached at the desired ‘time.’ Therefore, even if an Administrative Suit is filed against an employer's unfair dismissal or unfair labor practice, Provisiona relief should be granted just as in the case of filing a Civil Procedure. Specifically, a worker or employer can apply for Suspension of Execution in Revocation Litigation for the National Labor Relations Commission's decision on review. Regarding Provisional Disposition, unfair dismissal relief Revocation Litigation can use Provisional Disposition for payment of wages, Provisional Disposition for preservation of worker status, Provisional Disposition for prohibition of work interference, Provisional Disposition for suspension of effect for disadvantageous disposition, etc. In unfair labor practice relief Revocation Litigation, it is possible to use provisional disposition for collective bargaining compliance, provisional disposition for exclusion of interference with violation of right to organize, and provisional disposition for workplace lockout.

The many shades of intolerability in the workplace

The notion of intolerability traverses several workplace decisions. However, its meaning in the law is far from linear, and its significance varies, particularly when considering three primary dismissal-related scenarios: the meaning of dismissal; the general threshold for dismissal (also in the case of first offences); and the barriers to reinstatement in the case of unfair dismissal. This article restates established principles concerning labour dispute resolution, particularly those relating to onus and review standards and the role of breach of trust in employment relations. Drawing on recent jurisprudence, the article revisits the assumed role of intolerability and explores its nuanced impact on decision-making processes. In particular, the article demonstrates how the burden of proof and applicable review standards in the case of each of these dismissal-related scenarios can transform an ostensibly neutral term into a kaleidoscope of shades and meaning, with far-reaching implications in the workplace.

Reformulating Compensation for Unfair Dismissal in Light of the European Social Charter

Este artículo analiza la regulación de la indemnización por despido improcedente en España a la luz de la Carta Social Europea y las decisiones del Comité Europeo de Derechos Sociales. Se expone la problemática del actual modelo indemnizatorio español, que, al basarse exclusivamente en la antigüedad y el salario del trabajador, no ofrece una compensación adecuada a los trabajadores más vulnerables en el mercado de trabajo. Además, se critica la predictibilidad absoluta del sistema de indemnización, que ha convertido al despido improcedente en un mecanismo normalizado para la gestión de las plantillas, vaciando de contenido el derecho humano a no ser despedido sin justa causa. En respuesta a estas deficiencias, el trabajo propone una revisión profunda del sistema de cálculo de indemnizaciones, sugiriendo la implementación de un modelo más flexible, pero al mismo tiempo estructurado y equilibrado. Para ello, se propone dividir la indemnización en tres componentes: el lucro cesante derivado de la pérdida del empleo –al que se le debe aplicar la indemnización por despido objetivo procedente–, los daños morales vinculados a la antijuricidad del despido –que deben ser suficientemente disuasorios– y los perjuicios acreditados fehacientemente que no puedan subsumirse en las categorías anteriores.

Punitive Damages in Unfair Dismissal Cases: Lessons from Malaysia and New Zealand

Employers tend to dismiss employees without proper grounds, in bad faith or fail to follow procedure prescribed under law. An employee that has been dismissed unfairly can bring an action against the employer for unfair dismissal. Damage is the most sought remedy of the employee for unfair dismissal claims. Punitive damage is a form of monetary remedy awarded by the court in addition to the actual damage to the aggrieved party. Punitive damage is awarded as a punishment to the wrongdoer. Punitive damage has become the remedy in both Malaysia and New Zealand. The objective of this study is to analyse the punitive damage awarded by the Malaysian Industrial Court and New Zealand Court in unfair dismissal cases. This study employed a qualitative method with reference to journal articles, relevant statutory laws and case laws on unfair dismissal cases with punitive damage as an award. The findings show that punitive damages in unfair dismissal cases have been awarded by the Malaysian industrial court and New Zealand court against employers on the grounds that the dismissals were made under bad faith. This study is significant as it expands the application of punitive damage in unfair dismissal cases and improve the system’s legal certainty.

Punitive Damages in Unfair Dismissal Cases: Lessons from Malaysia and New Zealand

Punitive Damages in Unfair Dismissal Cases: Lessons from Malaysia and New Zealand

Punitive Damages In Unfair Dismissal Cases: Lessons From Malaysia And New Zealand

Punitive Damages In Unfair Dismissal Cases: Lessons From Malaysia And New Zealand

The interests behind directed doxastic wrongs

Abstract Very often, when a person’s doxastic activity is morally wrong “think of racist beliefs, unfounded suspicions, and unfair dismissals of testimony” it also wrongs someone in particular. This suggests that we have something at stake in how others reason about us. But what, exactly? According to a natural and fairly common view, whenever you have a doxastic duty towards someone in particular, this is partly because she has a personal interest in your having (or not having) a certain belief. I will argue that this cannot be right. This result is important for several reasons, not least of which is that it helps us get a better grip on what our directed doxastic duties are and what it takes to fulfill them.

Every Little Helps: Permanent Benefits, Contract Interpretation, and ‘Fire and Rehire’

‘Fire and rehire’ describes a scenario where the employer proposes a modification of contractual terms and conditions and uses dismissal to elicit agreement from a reluctant worker. Ordinarily, contractual variation requires mutual agreement supported by consideration.1 Where the worker refuses to accept the proposed variation, in ‘fire and rehire’ the employer terminates the existing contracts with notice and then issues new contracts containing the revised terms and conditions. Either the worker refuses, in which case she is out of a job, or she accepts the new contracts with revised terms, in which case the employer gets its way. The main legal constraint on this practice is the unfair dismissal regime, which in its current form provides relatively weak protection because of its solicitude for managerial prerogative in business and reorganisation dismissals.2 ‘Fire and rehire’ is a controversial practice because the current law on unfair dismissal does not restrict legally compliant ‘fire and rehire’ to circumstances of economic necessity or business force majeure. It might be possible to implement legally compliant dismissals where the employer used fair procedures, even where it had other economic options open to it. In circumstances where ‘fire and rehire’ is simply expedient rather than necessary, it may be regarded as unjust and exploitative. It has certainly been controversial as an opportunistic post-lockdown response to the economic downturn resulting from Covid-19.

Trade Union Activities, Industrial Action and the Human Rights Act

As the law now stands, employees who are dismissed for taking part in a lawful strike may have a remedy for unfair dismissal. Those who are the victim of retribution short of dismissal enjoy no such express protection. This gap in the legislation was confronted in Mercer v Alternative Future Group Ltd,1 where the applicant complained that she had been subjected to a detriment by the company following her suspension ‘because of allegations that she had abandoned her shift on two separate occasions without permission, and that she had spoken to the press about … strike action without prior authorisation in a way which conveyed confidential information and was considered likely to bring the organisation into disrepute’.2 Although she received normal pay during her suspension, the applicant claimed that she was ‘unable to work or receive pay for the overtime which she would normally have worked’.3 The question for the employment tribunal boiled down to a preliminary one, namely ‘whether, in the light of Articles 10 and 11 of the European Convention on Human Rights, the activities protected by [TULRCA 1992, section 146] extend to participation in lawful industrial action as a member of an independent trade union’.4 The claimant argued that the decision had been taken for the sole or main purpose of preventing or deterring her from taking part in the activities of an independent trade union at ‘an appropriate time’ or penalising her for having done so. For this purpose, the ‘activities’ in question ‘encompassed both the planning and organisation of the industrial action and her own participation in it’.5 Fully aware of the great significance of the case, the employment tribunal judge answered the preliminary question by holding that TULRCA 1992, s 146 did not include participation in a lawful strike, and that it was not possible to interpret it otherwise having regard to the HRA, s 3.6

Labour policy in the face of the COVID-19 socio-economic crisis in Spain: institutional change and social pacts

PurposeThis study aims to analyse the institutional changes in the Spanish labour market in the light of the measures introduced to support workers during the COVID-19 crisis. Applying the theoretical framework the authors’ hypothesis is that the labour policy response to the crisis provoked by COVID-19 in Spain has ranged from strategy of preservation of the social democratic coalition to the anti-bourgeois bloc coalition with a greater presence of social pacts and the support of the social partners.Design/methodology/approachCombining the institutional theory of liberalisation trajectories, the four ideal-typical reform strategies and the social pacts literature, the authors analyse the change in the labour market policy orientation during the COVID-19 economic crisis in Spain.FindingsIn comparison to the Great Recession labour policy response, short-time work schemes and new benefits have characterised the 2020 labour policy strategy. Then, the labour policy response has oscillated between, on the one hand, a strategy of preservation of the social democratic coalition, which is characterised by measures to protect workers on the margins of the labour market without affecting the discretionary power of employers. On the other hand, a strategy of the anti-bourgeois bloc coalition, reflected in the employment safeguard clause that attempts to limit both external numerical flexibility and the increase in unemployment. Finally, the authors have analysed whether the labour policies after the COVID-19 crisis constitute a new round of social pacts in Spain and how this took place. They conclude that the main measures approved in the area of employment protection have been supported by social pacts and the social partners (trade unions and employers), as reflected in the signing of the Social Agreement in Defence of Employment (ASDE).Originality/valueTo the best of the authors’ knowledge, this is a significant contribution as it is the first article to point out that the labour policy represents a change in the trajectory of liberalisation, limiting the discretionary power of employers and re-regulating the labour market. The main measure of (re)regulation has been to safeguard employment and to avoid objective or unfair dismissals, which is the traditional form of adjustment. In other words, internal numerical flexibility has been promoted over external flexibility, thus significantly modifying the orientation of labour policy. Finally, the authors have found that social pacts have allowed for greater institutional coherence between legal changes and the behaviour of employers and workers.

Does employment protection unprotect workers? The labor market effects of job reinstatements in Peru

We investigate the labor market effects of the reestablishment of workers’ right to reinstatement for unfair dismissals, which occurred in 2002 in Peru. Using data from Household Surveys from 2004 to 2015, and the Specialized Employment Survey 1998–2001, we estimate a series of quasi-experimental difference-in-difference models for permanent and temporary hiring. We evaluate the potential effects of reinstatement rights on the private sector with respect to the non-private sector. We find that reinstatement rights are associated with increases in the hiring of temporary workers and reductions in wages. However, further tests indicate that none of these associations is a causal effect, with a remarkable exception: we find that the right to reinstatement increases private permanent hiring by 2.5 percentage points relative to non-private hiring. These effects hold under a battery of alternative specifications and are robust to placebo tests. Our findings call into question the effectiveness of removing reinstatement laws as a policy to increase permanent hiring and wages.

Labour Dynamics in Chinese Small and Medium Enterprises (SME s)

Abstract Over the past few years, China–Africa engagements have intensified, manifesting in an escalation of Chinese small-scale entrepreneurs investing in African countries. Nevertheless, there is little research on everyday workplace encounters, management styles and labour dynamics in these businesses. This study fills this lacuna by examining labour and management practices in Chinese-owned SME s in Zimbabwe, and how local employees experience and perceive Chinese management styles and practices. We employed an ethnographic qualitative methodology, conducting interviews and informal conversations. Secondary data came from newspaper and civil society reports. The findings revealed that workplace regimes in Chinese SME s are complex and ambivalent, marked by precariousness, conflict, contestation and conviviality. The findings also highlighted meagre salaries, job insecurity, long working hours and unfair dismissals. We argue that the socio-spatial context of work in Chinese SME s in Zimbabwe is imbued with complex power dynamics driven by divergent cultural interpretations of work and being a worker.

ECJ 22 June 2022, case C-534/20 (Leistritz), Privacy, Unfair Dismissal

ECJ 22 June 2022, case C-534/20 (Leistritz), Privacy, Unfair Dismissal

Job Security Strategy and Job Satisfaction of Non-Teaching Staff in Public Universities in Lagos State

As institutions’ global environment becomes increasingly complex and inconsistent, the non-teaching staff agitations get intensified, thus, today’s institutions require dedicated focus. In the light of this, it is needful to identify and evaluate the issue of non-teaching staff agitations. Interestingly, studies are not forthcoming in Nigeria to address the above concern. Thus, this study examined job security strategy and job satisfaction of non-teaching staff in the public universities in Lagos State. The study used a mixed-method, and the population consisted of 4,800 non-teaching staff. The multi-stage sampling technique and a validated structured questionnaire were adapted for data collection. A 100% response rate was achieved. The job Security coefficient value was -0.283, an indication of negative effects on job satisfaction of the non-teaching staff in public universities in Lagos State. The result also revealed that Job Security was significant at 5% because the probability of its value was less than 0.05. Since the results revealed that Job Security had a significant effect on Job Satisfaction of non-teaching staff in the public universities in Lagos State, the study concluded that Job Security can strategically elicit job satisfaction of non-teaching staff in the public universities in Lagos State. Accordingly, this study recommends that the universities’ authorities need to reconfigure their employment policies, purposely, to eliminate unfair labor practices which may be facilitating threats, unfair dismissal, obscured career path, anti unions disposition, and unfair hearing on issues. Keywords: Job Security, Strategy, Non-Teaching Staff, Job Satisfaction, Public Universities, Lagos State.

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.

Protection Against Unfair Dismissal in Germany

The article analyses the German System of protection against dismissal based on the Dismissal Protection Act (Kündigungsschutzgesetz), but also deals with dismissals outside the KSchG as well as with extraordinary dismissals under section 626 BGB. This is done with due regard to European and International law.