Employment Law

Employment Guide – Dismissal

There must be a good reason for a dismissal and the dismissal must be carried out fairly. What is fair depends on the circumstances.  The decision to dismiss must be the decision a fair and reasonable employer would have made in all circumstances.

Any relevant provisions in the employment agreement must be followed. The employee must be given either the notice period set out in the employment agreement or if none is specified, a reasonable period of notice.

Explanation of Dismissal

If an employee is dismissed, he or she has the right to ask the employer for a written statement for the reasons for dismissal. This request can be made up to 60 days after the dismissal, or 60 days after the employee finds out he or she has been dismissed, eg where an employee is dismissed for abandoning their employment.

An employer must provide the written statement within 14 days of receiving the request. If an employer fails to do so, an employee may be able to raise a personal grievance after the 90 day limitation period for submitting a grievance has run out.

When a resignation is a dismissal : Constructive Dismissal

An employer will be held to have constructively dismissed an employee who has resigned where an employer:

  • Puts indirect or direct pressure on an employee to resign;
  • Seriously breaches the employment agreement, eg by one-sidedly altering terms and/or conditions to a substantial degree;
  • Makes the work environment so intolerable for the employee that he or she resigns.

In other words, to succeed on a constructive dismissal argument an employee would have to show that the resignation has only come about because the employer has acted in such an unfair and unreasonable fashion that the employee was effectively dismissed.