In the realm of employment law, the termination of the employment contract is at times a contentious issue. One of the reasons for that is employers tend to focus mainly on terminating an employee based on the terms outlined in the employment contract without considering other principles of law that govern the employment relationship. Employers should note that adherence to contractual stipulations alone may not shield employers from potential claims of unfair dismissal. This article explores the broader responsibilities that employers must consider when terminating an employee which include the need for procedural fairness and adherence to statutory requirements.
To mount a claim of unfair dismissal, the following must be demonstrated:
- That the employee was in fact dismissed;
- No reason was provided for the dismissal; or the reason provided to terminate was one prohibited by legal principles; and
- The employer acted unreasonably, disproportionate or was unjust and without using any prescribed procedure or did not afford the employee the benefit of the concept of natural justice to respond to any allegations which would have resulted in the dismissal
Employers should consider the following in terminating an employee, even if the employee has been accused of misconduct or poor performance.
- Reasons for terminating
Employers should avoid terminating employees for frivolous or discriminatory reasons. The Labour Relations Dispute Act or Labour Code recognizes employment as a social right and obligation which should be respected.
- Procedural Fairness
Employers must ensure that the disciplinary process leading to dismissal is fair and transparent. This includes providing the employee with notice of the reasons for disciplinary action, an opportunity to respond and confront his accusers, and the right to be accompanied by a representative during dismissal meetings or hearings.
- Documentation and Record Keeping
Maintaining accurate records of performance evaluations, disciplinary actions, and correspondence related to dismissal can provide critical evidence in defending against unfair dismissal claims.
If an employee is terminated unfairly they may get audience through the Ministry of Labour & Social Security, which if on assessment of the facts it believes a case exists, it will refer the matter to the Industrial Disputes Tribunal for determination. If the employee is successful, the tribunal is at large to make an award against the employer for a sum it deems fair to the employee.
While employers have the right to dismiss employees in accordance with the terms of the employment contract, they must remain vigilant regarding the broader principles of fairness governing dismissal practices. Upholding procedural fairness, avoiding discrimination, and adhering to statutory requirements are essential to mitigating the risks of unfair dismissal claims.
