A employment relationship, is really a contractual relationship. And as with all contracts, there must be ways to call it to an end. 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 a contractual breach.
In an employment situation, there are ways an employer can get into legal complications if he had not followed proper procedures for terminating a staff. In particular, he should be wary of these:
- Unfair dismissal
- Wrongful dismissal
A wrongful dismissal is a dismissal in breach of contract. Because a employment relationship is really a contractual relationship, there are contractual rights both parties have the benefit of. Promises made in contracts must be honored, or the party in breach risks paying damages.
Employers could be in breach even if no proper contract was signed, and there is no length of service required to enforce this claim. Common breaches include not paying salary or not providing sufficient time and written notice to terminate the contract. Say for example if an employer terminates a staff several days into his new job and there was no fault of the staff. Employer may have breached contract and must pay damages, including the cost of leaving his previous job.
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 are all wrongful and based on discrimination.
Here’s another version:
You are terminated with notice, but no reason was given for the termination.
Prior to termination, 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 notice, the employer’s conduct showed that he adopted a discriminatory attitude towards you. The dismissal was wrongful
Deprivation of benefits:
Scenario 1: You have informed your employer of your pregnancy. You have worked for your employer for 3 years. Soon after, employer dismissed you with notice. Maternity benefits were not paid. There was no legitimate reason for dismissing you.
Scenario 2: You earn less than $4500 and you tell your employer that you cannot work overtime because you need to take care of your infant child. Your employer dismisses you with notice.
Employer tells you that he cannot afford to have someone who prioritised care-giving duties over working overtime.
The dismissal was wrongful. Employer wanted to punish the you for exercising your statutory right to decline to work overtime.
Scenario 3: You haven’t been paid for 3 months. You file a mediation request with the Tripartite Alliance for Dispute Management. Employer dismisses you because you’re a “trouble maker”.
This is wrongful dismissal. An employer cannot punish you for exercising your statutory rights.
You are told by your employer that your company was restructuring, and your job would no longer exist. You are then terminated with notice.
However you later find out that your employer’s reason was not true. In fact, there remained a vacancy for the exact job you used to do, and your former employer had recruited someone else to fill his post.
On the face of it, this is a case of dismissal with notice (employer does not need to provide a reason). But he provided a reason, which was shown to be untrue. Hence, the dismissal was wrongful.
What can you do?
If you are a member of a trade union, go directly to your branch leaders. They will help you to navigate the inherent difficulties of such claims, perhaps even helping you to avoid the situation altogether and improve the relationship with your employer, or at least prevent the situation from getting worse.
If you are not, then you may file a claim with the Employment Claims Tribunal at the State Courts.
However, if the claim is a salary related dispute, both employer and employee must first undergo mediation at the Tripartite Alliance for Dispute Management (TADM).
The illustrations above came directly from the new guidelines released by tripartite partners and is published in the Employment Claims Act. It helps individuals, HR practitioners as well as legal practitioners understand their grounds and parameters when it comes to termination.