Unfair dismissal in Namibia is defined by the Labour Act, 2007, under which the employer has the burden of the proof that a dismissal was fair. The entire circumstances of the case must be considered under the test of reasonableness within section 98(4) of the Employment Rights Act 1996. he dismissal will be regarded as automatically unfair if the worker is dismissed for: exercising any of the rights given by the LRA or participating in proceedings in terms of the Act. The HR lesson for employers: Even when you weigh up all the factors, there are still times misconduct will justify dismissal. Contact us today for more information about our Employment Law, Health & Safety, and HR services. Explore our events for aspiring lawyers. In Reilly v Sandwell Metropolitan Borough Council [2016], the Supreme Court was faced with the issue of whether the headteacher of a primary school could be fired for not disclosing her close yet platonic relationship with a convicted sex offender. A single foolish, dishonest act may not always, in the circumstances of a particular case, justify summary dismissal. Redundancy, e.g. Should I make an unfair dismissal claim? Do you have a HR case that needs looking at? Acts of self-defence by the claimant were deemed to be acts of aggression. Mr Hastings was dismissed for gross misconduct after an altercation with a third-party van driver in the car park. In the case, ... the one-off incident did not warrant dismissal on the grounds of gross misconduct. Facts A healthcare assistant at a nursing home was dismissed for gross misconduct as a result of sleeping on duty and falsifying residents’ records. The basic facts of the case are as follows: The employer’s appeal against the decision was dismissed by the Employment Appeal Tribunal However, the Employment Appeal Tribunal found this application of the ACAS Code problematic because it could also give rise to an uplift in the claimant’s compensation by 25% for the employer’s non-compliance with the Code. Employees claiming to be victims of automatic unfair dismissals for purposes of section 187 (1) (f) must prove two things: first, that they were discriminated against; second that the discrimination was unfair. Turning to the issue of fairness, there is both a statutory test, and a test developed by case law. The following reasons for dismissal are invalid. Whilst she hasn’t won her Grammy just yet, she still loves a good karaoke night. An employee could claim unfair dismissal through the CCMA in the following circumstances: a contract worker whose fixed-term contract is suddenly ended or renewed on less favourable terms, where the worker expected the contract to be renewed because it has often been renewed before Sign up to get our news and blogs sent straight to your inbox. Unfair dismissal case of alleged gross misconduct at Adare Manor resolved Case taken by former director of engineering and facilities at five-star luxury resort Fri, Mar 8, 2019, 19:44 To sum up, only elements of the ACAS Code are applied where appropriate. In the case of Mr R Hastings v Kings College Hospital NHS Foundation Trust, the employment tribunal awarded an IT manager £1m following an unfair and discriminatory dismissal by King’s College Hospital NHS Foundation Trust. Also, where the boundaries lie when it comes to dismissing a worker for bad behaviour. Issue: Unfair dismissal – successful disciplinary appeal revives employment. In reaching this conclusion, it also cited an express clause in the NSW Government Sector Employment Act, which expressly stated “misconduct” could include after-hours and off-duty conduct. Looking at three misconduct decisions, impacting the HR industry, working out exactly what’s likely to lead to a tribunal appearance. Several red flags in the case show racial bias in the investigation and disciplinary procedure: Overall, this case clarifies that even if an employer has a disciplinary/ investigation procedure in place, the way in which it is used must be neutral for a dismissal to be fair. It also alleged he’d confiscated another of his subordinate’s mobile phones. In this blog, we take a look at some key cases in recent years that add to existing law. Leave a Comment Cancel reply. Dismissal at the end of a fixed-term or specified-purpose contract may be considered unfair under the Unfair Dismissals Acts. Before diving into the facts of the case, it is worth mentioning that the purpose of the ACAS code is to provide guidance for employers on what a fair disciplinary or grievance procedure should look like. The reason for dismissal has to be one of a list of potentially legitimate reasons and you, as the employer, must follow a fair procedure, otherwise the dismissal will be unfair and can lead to a claim against the employer in the employment tribunal. Discrimination of any form in the workplace is a cause for concern, but how can discrimination in dismissal or disciplinary procedures be combatted? The appellant had a duty to inform the school’s governing body of her relationship with a convicted sex offender. What kind of lawyer would you be? Wed, 2020-12-02 04:44 PM. Mr Hastings was dismissed for gross misconduct after an altercation with a third-party van driver in the car park. This page tells you more about the legal tests a tribunal will apply to a claim for unfair dismissal for misconduct. If an employer dismisses an employee on any of the grounds listed in section 187 (1) (f), the dismissal … Unfair Dismissal – Gross Misconduct. Contact him today for an informal chat, without obligation on 01271 342268 or via email at jon.dunkley@wollens.co.uk. As aforesaid, the arbitrator found the employee guilty of misconduct guilty of the offence but found the sanction of dismissal to be unfair. To make matters worse, the questions used deliberately presented the claimant as an aggressor. The Fair Work Commission disagreed. 1.1. Comment. Read about a landmark gross misconduct dismissal case in our blog. Although reinstatement and re-engagement are both possible awards, a successful unfair dismissal claim usually results in an employee only receiving financial compensation for loss of … Disciplinary proceedings for gross misconduct and investigation of the facts were more like interrogations. gross misconduct may lawfully be dismissed without notice and will not be wrongfully dismissed. Please assist. if a … The Fair Work Commission found that it wasn’t relevant if the worker was at work when the video was sent. How we view employment rights today has drastically changed with the evolution of the gig economy and a growing emphasis on the issue of discrimination. © CATALINA CONSULTANTS 2020. Dismissal may not always be found to be a reasonable and fair decision, even where there is a finding of gross misconduct, as a recent case has reinforced. Read out article: 'A recent case of unfair dismissals'. Just make sure you always get proper advice before you go through with it. When Mr Hastings made a grievance concerning racial discrimination, no further investigation was made into the grievance and it was swiftly dismissed. The ACAS Code of Practice on Disciplinary and Grievance Procedure applies to dismissals based on the employee’s misconduct or poor performance. Final Thoughts – Wrongful vs Unfair Dismissal Aside from offering greater scope for employers to dismiss, these cases also highlight the important difference between wrongful and unfair dismissal. Procedural fairness Introduction. Find out more about employment law in our guide. It's important that an employer uses a fair and reasonable procedure to decide whether to dismiss someone. 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