Fair and Just Dismissal
When considering disciplinary action that may lead to an employee's dismissal, an employer has to wrestle with questions of both fairness and "just reasons" in order to successfully exercise their authority over that employee. Generally speaking, employers are viewed as having more bargaining power than employees and so the law places a greater duty on them to compensate for the disparity. Employees should reach out to attorneys, unions and bargaining councils for assistance and insight but often aren't well informed of these options. The key principle of "fairness" is important across all labour law but is uniquely central to the issue of unfair dismissal and the labour litigation it could lead to.
What is a Fair Dismissal?
A fair dismissal has two basic requirements, of substantive and procedural fairness. While substantive fairness refers to whether the employee violated a workplace rule or standard, procedural fairness focuses on the actual process used in the employee's dismissal. Failing to meet either requirement allows for a dispute and creates the possibility of compensation or reinstatement being awarded to an aggrieved employee1.
Substantive fairness is the initial factual enquiry that asks whether the employee violated a standard set in the workplace or a rule communicated to its employees. It is then asked whether the rule itself is legitimate. To do this the decision-maker answers the question of whether the rule is valid and...
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