UNFAIR DISMISSAL

Unfair Dismissal

Unfair Dismissal

Introduction

The term wrongful dismissal (or discharge) describes those instances where an employer illegally chooses to terminate (including a constructive discharge, forced resignation, elimination of the job, permanent layoff, or failure to recall or rehire) the employment of an employee. There are a number of factors to take into account in attempting to determine whether the dismissal of an employee is illegal.

This paper is based on a case study in which, Noddy has dismissed two of his most dedicated employees, namely Tessie and Goblin.

Many of the issues relating to wrongful dismissal depend on whether the employee is working under an employment contract or not. In situations where the employee has an employment contract, questions may arise as to what constitutes “good cause,” “just cause,” or simply “cause,” under the terms of the contract. The law provides that an employment contract for a definite term may not be terminated without cause before the expiration of the term, unless the contract provides otherwise. Where a union is involved, collective bargaining agreements generally contain prohibitions on discharge except for just cause.

Discussion

Generally speaking, just cause may be of two types: (1) economic reasons unrelated to the employee or (2) employee misconduct or inadequate performance. Just cause may be established for economic reasons if the employment agreement does not have a definite term and the reason for termination is a bona fide reduction in force, plant closing, or reorganization. If the agreement does have a definite term, these situations may not establish just cause, unless the contract defines it as such. The second type, employee-based reasons, may include inadequate performance or misconduct, such as providing fraudulent background information, sexual harassment, or mistreatment of customers.

Public Policy Exception

The major exception to the at-will doctrine is the public policy exception. Courts have typically held that it is illegal, even where employment is for an indefinite term, for an employer to discharge an employee when the employer's intent is to violate an important and clearly mandated policy (as in Noddy's case). Noddy should have had the courage to listen to Tressie's and Goblin's issues before taking the final decision.

In Tressie's case, Noddy was wrong to dismiss her because, as the case suggests, she had not been absent for the days beyond the limits. She had been absent on 33 days, each with a one day's off. So, Noddy must have considered this fact and should have taken Tressie into confidence before making any final decision.

It is in case of Goblin that Noddy was right enough to take the dismissal action immediately but he should have given him at least a one time warning after the fight, as he did to the Big Ear.

By contrast, however, some states, such as California, limit their interpretation of public policy to statutes or constitution (see, for example, Gantt v. Sentry Ins., 1 Cal. 4th 1083, 1992).

Although there are many types of public policy exceptions, most of the cases fall into four major categories: (1) refusal to perform unlawful ...