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What is wrongful dismissal anyway?

Updated: May 6

In essence, an employment relationship is a contractual one. And as with all other forms of contracts, there must be a way to end it properly. All contracts should have an exit clause; either party can call for termination by giving X number of days' notice. Any other means of ending the relationship is thus a contractual breach.

In an employment situation, there are instances an employer can get slapped with legal complications if he had not followed proper procedures for terminating a staff. In particular, he should be wary of these:

  1. Unfair dismissal

  2. Wrongful dismissal

A wrongful dismissal is a dismissal which breaches terms stipulated within a signed contract. Because an employment relationship is contractual in nature as mentioned above, there are existing contractual rights both parties are accorded with. Promises made in these contracts must be honored, or the party who initiates a breach risks incurring financial penalties.

Employers could be held accountable even if no proper contract was drawn up and signed, ie no length of service was previously agreed upon in writing to enforce a claim. Common breaches include not paying salaries due or not providing sufficient time and written notice to terminate the contract. Say for example if someone is fired several days into his/her new job without just cause, then his/her employer may be liable for payment of damages, opportunity costs associated with leaving his/her previous job being considered.

We start with the discriminatory ones:

  • Employer says the role is not available to men anymore, preferring an all woman team

  • Employer terminates on grounds of age, but you’re only 55 years old

  • Employer terminates you because of your race/religion saying that he prefers more cohesion in the team

These dismissals are based on discrimination and are therefore deemed wrongful.

Here’s another version:

You were dismissed with notice given, but no meaningful reason was offered for the termination.

Prior to being let go by the company, your employer made numerous discriminatory remarks about your race, stating that he preferred to hire someone of another race. This was confirmed by other employees.

So even though you were dismissed with ample notice, the employer’s conduct showed that he had all along adopted a discriminatory attitude towards you. The dismissal was thus wrongful.

Deprivation of benefits:

Scenario 1: You have informed your employer of your pregnancy. You have worked in the company for 3 years. Soon after, you were dismissed without a legitimate reason even though notice was given. Maternity benefits were not paid.

Scenario 2: You earn less than $4500 and you inform your employer that you are unable to work overtime because you need to take care of your infant child. You were subsequently dismissed with notice given.

Employer tells you that he cannot afford to have someone who prioritizes care-giving duties over working overtime.

The dismissal was wrongful. You were punished in an attempt to exercise your statutory right to decline working overtime.

Scenario 3: You haven’t been paid for 3 months. You file a mediation request with the Tripartite Alliance for Dispute Management. You were dismissed, because according to your employer, you were a “trouble maker”.

This is wrongful dismissal. An employer cannot punish you for exercising your statutory rights.

False reasons:

You are informed by your employer that the company was restructuring, by implication your job would no longer exist. You are then terminated with notice.

However you later discover that your employer’s assertion was false. In fact, someone else was eventually recruited to fill this position you vacated involuntarily.

On the surface, this appears to be a case of dismissal with notice. While your employer needn't provide a reason, he chose to do so, and circumstances articulated turned out to be untrue. Hence, the dismissal was wrongful.

What can you do?

If you are a member of a trade union, approach your branch leaders directly. They will help you to navigate the inherent difficulties of filing such claims, perhaps even assist you in avoiding this possibly embarrassing stalemate altogether or at least prevent the present situation from further deteriorating.

If you aren't, you may wish to file a claim with the Employment Claims Tribunal at the State Courts.

However, if the claim relates to a salary related dispute, both employer and employee must first undergo mediation at the Tripartite Alliance for Dispute Management (TADM).

The illustrations presented above were derived directly from the new guidelines released by tripartite partners and are published in the Employment Claims Act. It helps individuals, HR practitioners as well as legal practitioners understand their rights, obligations and boundaries concerning termination of employment.

#salariedemployee #racialdiscrimination #tradeunions #employer

#EmploymentClaimsAct #TripartiteAllianceForDisputeManagementTADM


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