Contents
What is Dismissal ?
Dismissal is a term defining the termination of employee from employment with company. It means that employer has ended employment contract with employee and no longer want his services. Dismissal in simple terms can also be referred to someone getting sacked or fired from his company. The termination of employment services can be done as per employee’s will or against his will by employer.
Employer can take decision of employee dismissal against his will because of many reasons such as economic downturn, business wind-up or performance related issue on employee’s part. Getting laid off from company involuntarily is generally seen as fault for employee. It may also become difficult to find new employment opportunity for employee once he is dismissed from previous organization due to some serious infringement or not being able to keep up assigned job.
Employers also take dismissal decision after things go much critical or are beyond the control. It is must for every employer to follow fair and valid plan of action for coming up with a decision to terminate someone. In case, if reasonable procedure is not followed then employee can claim dismissal to be unfair even if reason for terminating them was valid. There are five potential reasons for employee dismissal in eyes of law: employee misconduct, incapability, redundancy, legal cause and some substantial reason (covering wide variety of other reasons).
Types of Dismissal
Different types of dismissal are discussed in points given below: –
- Fair and Unfair Dismissal: A dismissal is said to be fair or unfair depending upon reason given for dismissing employees by employer. It reflects how you have behave during process of dismissal. Fair dismissal is one where there is valid reason and reasonable process is followed. Examples of valid reasons for fair dismissal can be capability, redundancy, conduct or legal issues.
Unfair dismissal, on other hand, means termination of employee from employment without giving any valid or fair reason. An employee can claim his dismissal as unfair when employer does not act in reasonable manner, give wrong reason for firing or reason given is unfair.
- Constructive Dismissal: Constructive dismissal is when employee resigns from his job due to breach of employment contract by employer. A fundamental change is brought by employer into employment contract without taking consent from employee eventually forcing employee to quit job. The changes made by employer usually are not meant to benefit employees and breach the fundamentals of whole contract.
The changes could either include single serious event or series of less serious events such as: –
- Cutting pay without any agreement
- Increasing workload in unfair manner
- Demoting someone in unlawful way
- Providing hazardous/harmful workplace conditions
- Allowing workers to get harassed, discriminated or bullied
- Wrongful Dismissal: Wrongful dismissal means breaching the terms of employment contract in dismissal process by employer. Here, employer terminates the employee’s without giving any prior notice or do not follow any appropriate procedure. It is most common type of dismissal where termination decision is of employer but not employee and contractual terms are broken. A wrongful dismissal cannot be at all times as same as unfair dismissal.
- Just Cause Dismissal: Just cause dismissal is an instant dismissal of employees without notice or pay in lieu of notice arising out of gross misconduct. It is referred to as ‘serious employee misconduct’ according to Canadian courts under which employee strikes the key fundamentals of employment contract. The misconduct is of severe level such that it is impossible either to continue or repair the contract of employment. Various misconduct covered here are fraud, theft, violence, incompetence, dishonesty etc.
Procedure of Dismissal
An appropriate code of practice for dismissal of employees is set up by Acas in order to carry out process conveniently. Acas is independent organization aimed at resolving disputes of employee. The code established by Acas says that dismissal process must include at least 5 steps. These steps are discussed in points given below: –
- An investigation: Firstly, employer should investigate the matter in order to find out true facts concerned with undesired event occurred. The process can be termed unfair if efforts are not made to find out what really happened. There should be proper facts and figures for which employer can say that employee has done something wrong.
Investigation should begin as soon as possible and employee should be kept paying if he is suspended by employer.
- An initial letter: Now, a letter or email need to be written by employer to employee informing about what is the problem. The result of such problem should also be properly told to employee like if he will be given warning letter or dismissed from job. It serves like notice given to employee informing him about his wrong doing or errors.
- A dismissal meeting: Employer arranges a meeting with employee where he is given chance to defend himself. The meeting needs to be organized prior to coming up with any final decision. Employee should be given sufficient time for doing meeting preparation. They should be well informed about what they are accused of and evidences found against them.
Employees should ask their employer in advance for rearranging the meeting in case if they are unable to attend or not getting enough time for meeting preparation.
- Your employer’s decision: Employer should now as quickly as they can, send outcome of dismissal meeting to employee through letter or email. A note must be mentioned regarding employee appeal and procedure how to do it. The decision taken should treat all employee equally and there should be no discrimination among employee’s treatment under similar situations.
- A chance to appeal: A employee should get chance of appeal in case if he is disagree with decision taken by employer. Appeal request need not to be decided by same person who originally dismissed the concerned employee; however, it can be if employer has only few employees.
The above-mentioned steps reflect an ideal dismissal procedure that should be followed by employer in order to avoid any employee dispute or legal sanction. It is because employee can claim dismissal as unfair and sue employer in absence if proper procedure is not followed for termination.