Under the Employment Act, both you and your employer have the right to contractually terminate the employment relationship.
However, there will be cases where an employee believes he has been wrongfully dismissed.
In that instance, the employee can file a mediation request with the Tripartite Alliance for Dispute Management (TADM) to resolve the matter.
Such cases would, of course, be minimised if there was something to help clearly define wrongful dismissals.
The guidelines aim to give employers, employees and mediators a clear picture of what constitutes wrongful and not wrongful dismissals.
Let’s take a closer look at the guidelines:
Circumstances where misconduct or poor performance are cited
Misconduct is the only legitimate reason for an employee to be dismissed without notice. An employer may, after investigations, dismiss an employee without notice for misconduct.
Grounds for dismissal without notice include theft, dishonest or disorderly conduct at work, insubordination, and bringing the company to disrepute.
We need to keep in mind that if misconduct is cited as the reason for dismissal, the burden would be on the employer to prove this. If the employer can’t, then the dismissal is wrongful.
- Poor Performance
If the employer wants to dismiss an employee due to poor performance, he cannot do it without notice. The employer will need to substantiate with documented proof if poor performance is cited as the reason for dismissal with notice.
Circumstances where the right to contractually terminate is invoked
As both employees and employers have a right to contractually terminate employment with notice, dismissals with notice are usually presumed not to be wrongful. But there are exceptions, of course.
Redundancy is a legitimate reason for employees to be dismissed. But employees need to be given ample notice.
Redundancy usually occurs when a company has excess manpower, undergoes restructuring, the job no longer exists, or the employee’s job scope has changed.
Circumstances where dismissals with notice are wrongful
There will also be times when dismissals with notice can be wrongful. However, an employee needs to substantiate that there is a wrongful reason for his dismissal.
Some wrongful reasons include:
It’s wrongful to dismiss an employee because of discrimination. These would include discriminating against the employee’s age, race, gender, religion, marital status, family responsibilities or disability.
- Deprivation of Benefits
An employer cannot dismiss an employee to deprive him of the benefits or entitlement he would otherwise have earned.
- Exercising Rights
Should an employee exercise his employment right such as filing a mediation request with TADM, or declining to work overtime, it would be wrong for the employer to dismiss him.
- False Information
If an employer dismisses an employee with notice based on a reason that’s proven to be false, the dismissal would be wrongful.
You Should Know Your Rights
With the recent amendment of the Employment Act, all employees, including 430,000 managers and executives, are now protected against wrongful dismissals under the law.
As an employee, you should know your employment rights to protect yourself adequately. If you believe you have been wrongfully dismissed, you should make an appointment with TADM.
Should your dispute remain unresolved, you can file a claim ay the Employment Claims Tribunal from 15 April 2019.