UNFAIR DISMISSAL LAW
Unfair dismissal claims are becoming more common. Indeed, no employer can afford to be ignorant of unfair dismissal law. One problem is that because of the complexity of industrial relations law few employers have more than a general knowledge of what constitutes an unfair dismissal. Another problem which is perceived by employers is the ease by which a claim may be made by an ex-employee and the expense of defending it.
Once a claim has been made it is often easier to make a settlement offer immediately rather than engage in lawyers to defend it. The expense of litigation means that once lawyers have been engaged, often the advice will be that it makes the best commercial sense to settle. Once the matter has been settled the employer is sometimes left with the unsatisfactory feeling that the ex-employee has received "something for nothing".
Taking the redundancy example, if the employee was unfairly chosen for redundancy then the dismissal will be unfair despite the fact that a bone fide redundancy existed. Consider, if employee A had had a fight with employee B and it was decided by the employee that the fight was caused by A and that the company would be better off without A, then to dismiss A because:
a redundancy genuinely existed and somebody had to go; and A was "disruptive", -
could well be "unfair".
In this situation it would be fair to inform A that he is being considered for redundancy. A should also be given the opportunity to respond to the allegation that the fight was his fault. It may be that the fight was wholly cause by B.
In addition, before retrenching an employee an employer should consider redeployment and retraining options for the employee and talk these over with him or her, giving the opportunity for input from the employee. This is because it may be that the employee can think of a redeployment or other option which has not occurred to the employer.
When dismissing an employee for poor performance, the employer should again follow a certain procedure to ensure that the method of the dismissal is "fair'. A poor performing employee should be warned that his or her performance is not up to scratch. He or she should be given an opportunity to respond to the allegation that he or she is under-performing. If an employee shows poor performance this should be noted and notice should be given to the employee.
If a company does not review employees monthly, it may be advisable to begin purely for the reason that it is easier to warn employees they are performing poorly by using a periodic written review than by any other means. Note that the warnings should always be written. The poor performing employee should also be told that continued poor performance will lend to dismissal. This gives the employee the chance to lift his or her game.
These days, if you are an employer and are considering dismissal an employee, you cannot afford to be ill informed about unfair dismissal law. The safest course is to obtain legal advice before the dismissal.