Rules of Fair Dismissal

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MTL: The Professional Development Programme
The Rules of Fair Dismissal
THE RULES OF FAIR
DISMISSAL
Fair, thorough, and merciful

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Learn.
The Rules of
Fair Dismissal
Introduction: Dismissals are the ultimate step in discipline, spelling the end of the
contract and the employee-employer relationship. There are many factors to consider
when deciding on a dismissal, including the fairness of your case, the fairness of your
procedure, and the impact of losing an employee. In this topic, we'll look at 7 of the
key features in making your decision.

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https://pixabay.com/en/shredder-destroy-paper-trash-27761/
Ending a contract can be done by you or your employer
1. THE ENDING
OF
CONTRACTS
A contract of employment ends when one or
other side brings it to an end. There are
employee-initiated endings and employer-
initiated endings. Employee-initiated endings are
resignation; mutual agreement; and the end of a
fixed-term contract. Employer-initiated endings
are: contract frustration; constructive dismissal;
and dismissal for disciplinary or other reasons.

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2. FAIR OR
UNFAIR?
https://www.flickr.com/photos/kheelcenter/5279674056/
American women on strike for unfair practices in 1966
The law where you operate will determine what is
an automatically fair or unfair dismissal. For
example, a dismissal may be fair if it is due to a
lack of qualifications; incapability; gross
misconduct; redundancy; and pregnancy outside
a protected period. A dismissal may be unfair if it
is due to union membership; pregnancy within a
protected period; business transfer; and
redundancy contrary to accepted practice.

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A work contract may be frustrated if the employee is in jail
3. CONTRACT
FRUSTRATION
https://pixabay.com/en/grille-the-dependence-of-life-1848975/
When a contract of employment is frustrated,
there is no dismissal and no resignation, but the
contract cannot be continued. Neither side is to
blame and the event causing the frustration must
have been unforeseeable at the start of the
contract. The circumstances must totally prevent
the continuation of the contract, for example,
very long-term sickness and a lengthy term of
imprisonment.

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4.
CONSTRUCTIVE
DISMISSAL
https://freerangestock.com/photos/39896/the-wealthy-and-the-others--
income-inequality-concept.html
Actions of the employer can justify the employee leaving
A constructive dismissal occurs when an
employer behaves in such an unreasonable way
that the employee is justified in breaking the
contract and leaving. Examples could be:
changing someone's terms and conditions
without their agreement; taking someone else on
to do the employee's work without explanation;
and seriously undermining the employee's
authority.

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No longer needed
5.
REDUNDANCY
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Always check the legal requirements in your
country for what constitutes fair and reasonable
redundancy. This means checking that the
situation is a genuine redundancy, ie work of the
type done by the employee has ceased or
diminished; that you are using a fair selection
procedure; that notice periods have been given;
and that you have fully complied with any
consultation requirements.

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6. FAIR
DISMISSAL
https://freerangestock.com/photos/83749/businessman-facing-opening-
doors--threats-and-opportunities.html
Out the door
If you have to dismiss someone, the dismissal
must be fair. The following 5 cases would
probably be fair:
a. loss of an essential qualification
b. sickness incapability
c. statutory prohibition
d. gross misconduct
e. other substantial reason, eg the irretrievable
breakdown of the contract.

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7. APPEALS
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Dismissed employees should have a right to appeal
Employees who are dismissed should be told of
their right of appeal and how they might make
their appeal. An appeal should normally be made
to the next level of management or to a special
committee. Your policy should state clearly what
the grounds of an appeal can be, eg that the
hearing failed to follow the correct procedure.
Note that there will usually be laid-down time
limits on responding to, and deciding on, an
appeal.

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8. A
DISMISSAL
CHECKLIST
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Check you’ve followed procedures before you dismiss
As well as the facts of the case, you should take
into account other factors before dismissing.
These include: the employee's record and length
of service; the size and nature of the business;
the appropriateness of the decision and how
other similar cases were treated; whether your
disciplinary procedures were followed; whether
alternative courses were considered and, if so,
why they were rejected.

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This has been a Slide Topic from Manage Train Learn
AFinal
Word
This overview gives you the key issues to consider when you dismiss someone. It does not claim to
be the last word on how to ensure you are able to dismiss fairly and stay on the right side of the
law but it will point you in the right direction. Use it as the starting point for further study and
explanations.

Rules of Fair Dismissal

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