What is the difference between unfair dismissal and automatically unfair dismissal?
An automatically unfair dismissal is distinguished from an 'ordinary' dismissal i.e. a dismissal for reasons relating to the employee's conduct, capacity or the employer's operational requirements. The essence of the unfairness in these situations comes from the reason for the dismissal.
In order for a dismissal to be fair, it must be proved that the dismissal is both substantively and procedurally fair. The employer is required to prove substantive fairness at a disciplinary inquiry.
If the employee has been forced to resign, then the law will treat the employee as having their employment terminated. The employee can then lodge an unfair dismissal, general protections, or unlawful termination claim. An example of constructive dismissal would be if the employer asked for the employee's resignation.
Fair reasons for dismissal
(1) A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment.
A dismissal is potentially fair if your employee “could not continue to work in the position which he held” without either you or your employee contravening “a duty or restriction imposed by or under an enactment.” This includes cases such a potential breach of immigration rules or your employee having a criminal ...
A fair dismissal has two basic requirements. It must be proved that the dismissal is both substantively and procedurally fair. While substantive fairness refers to whether an employee violated a workplace rule or standard, procedural fairness focuses on the actual process used in the employee's dismissal.
It's difficult to prove constructive dismissal - not many claims win. You'll also need to work out how much money you might get. An adviser at your nearest Citizens Advice can help you decide if it's worth making a claim.
In terms of the Labour Relations Act 66 of 1995 (“LRA”), an employee has the right to be fairly dismissed. A fair dismissal must be both substantively and procedurally fair. Incapacity (this is inclusive of ill health, poor work performance and incompatibility).
- Follow your disciplinary procedure. ...
- Take notes and gather evidence. ...
- Ensure you have a fair and valid reason for the dismissal. ...
- Take care not to discriminate. ...
- Invite the employee to a disciplinary meeting. ...
- Adjourn the meeting. ...
- Reconvene to communicate the outcome.
the employee was dismissed from their employment; the dismissal was 'harsh, unjust or unreasonable'; the employee's dismissal was not a genuine redundancy; and. the dismissal was not consistent with the Small Business Fair Dismissal Code (if the employer is a small business employer).
What are the 3 forms of dismissal?
- Dismissal due to Misconduct.
- Dismissal due to Incapacity.
- Dismissal due to Operational Requirements.
the dismissal was harsh, unjust or unreasonable.
When you terminate an employee's contract without a fair reason, it's an unfair dismissal. You may also hear it called an unlawful dismissal. Unfair redundancy is another term you might come across—but the official employment law terminology is unfair dismissal.
- Reinstatement, which is arguably the primary remedy for unfair dismissal. ...
- Damages in lieu of reinstatement is a remedy available to an employee whose employer does not want to re-employ the unfairly dismissed employee. ...
- Back pay.
How much is an unfair dismissal payout? According to the latest figures from the FWC, the median unfair dismissal payout is $8,704. The maximum amount of compensation that you can receive is the lower of the two following amounts: Half of your annual wage OR.
- appealing through your employer's appeal process.
- making a claim to an employment tribunal - if you have a genuine unfair dismissal claim and have worked for your employer for more than 2 years.
The burden of proof
Usually the burden of proving that the dismissal was fair lies with the employer. To successfully resist a claim the employer will have to show that: the reason for the dismissal was a fair one; the employer acted reasonably in the way the dismissal was carried out.
The “causes” that are grounds for dismissal run the gamut including: illegal activity such as stealing or revealing trade secrets, dishonesty, breaking company rules, harassing or disrupting other workers, insubordination, excessive unexcused absences, and poor job performance by some objective measure.
Even if you think you've dismissed someone fairly, they could still claim unfair dismissal against you if they think that: the reason you gave for the dismissal was not the real one. the reason was unfair. you acted unreasonably, for example by failing to give them plenty of warning about their dismissal.
This is similar to statutory redundancy pay – and is: 1.5 weeks' pay per year of service from age 41. 1 week's pay for each year of service if you are aged 22 – 40. 0.5 week's pay for each year served if you are under 22 years.
Do you get a basic award for automatic unfair dismissal?
If a tribunal decides you've been unfairly dismissed, you'll get compensation. The amount they award you is made up of: a fixed sum calculated to a set formula - this is called a 'basic award' compensation for the money you've lost as a result of losing your job - this is called a 'compensatory award'
An automatically unfair dismissal is a dismissal that is so inherently unfair that an employee is not usually required to prove two years' continuous service. This is because employees are afforded specific proection by law if dismissed in circumstances where the dismissal violates their basic employment rights.
incapacity (the worker does not do the job properly, or the worker is unable to do the job due to illness or disability) retrenchment or redundancy (the employer is cutting down on staff or restructuring the work and work of a particular kind has changed)
Generally, there are two outcomes for unfair dismissal claims: reinstatement or compensation. However, reinstatement rarely occurs. The maximum compensation payable is capped at six months pay (read this article) This will generally only be awarded in the most serious of cases.
This application, known as an unfair dismissal claim, must be lodged within 21 days of your employment finishing. That is, from the day you physically stopped attending your place of work.
Thus, whilst unfair dismissal claims may be a cost-friendly legal action, it may be considered a “low return” in regards to the amount of money that can be sought. Nevertheless, when a person has lost their job, any number of weeks pay is beneficial whilst looking for alternative work.
What remedy does an employee have if s/he has been unfairly dismissed? If an employee is of the opinion that his/her dismissal was an unfair dismissal, the employee must refer a dispute to the CCMA or relevant Bargaining Council within 30 days from date of dismissal. The referral is done by completing a form.
Here are just a few examples of unfair treatment at work:
Creating offensive comments, emails or social media posts about an employee. Demoting, transferring, or dismissing an employee without a fair, disciplinary process. Paying women lower wages for doing the same job, because of their sex.
Denial of a promotion, training, or education opportunity. Inequality in pay. Inequality in work conditions. Unfavorable job transfers or demotions.