Dismissals – a right way and a wrong way ?

When a person enters into a contract of employment with an employer, there are certain considerations that are committed to on both sides. An employee is entitled to receive regular remuneration under the terms of payment agreed, is entitled to a reasonable standard of working conditions and is entitled to paid holidays within agreed terms. The employer is entitled to expect their employees to work to a certain standard of work, operate with a duty of care, be timely and be informed of any changes to the employee’s circumstances that may affect their ability to work at the expected standard.

Grounds for dismissing an employee fall into several broad categories. These include redundancy, frustration of contract, employee conduct, gross negligence and any other substantial reason. New employees face the added potential problem of probationary period dismissal. Basically, during a probationary period, an employee may be dismissed for any reasonable, justifiable reason. In simple terms, if there is no obvious case of discrimination, the company can quite legally dismiss an employee with little fear of grievance procedures or other reprisals.

A company has to earn more income than it pays out in costs if it is to survive. Where a business has to cut costs or re-organize its workforce, a redundancy situation may occur. A general economic downtown, such as the current recession, often forces a business into the position of cutting back on costs, including staff, in order to weather the economic storm. As such, a redundancy is a valid and legal reason for dismissal. The only real consideration here is whether the person or the job is redundant. If it is the former then the dismissal will probably not be legal and valid, in which case the employee must be offered reinstatement and / or compensation. A valid redundancy occurs due to the position no longer being viable and as such, the position cannot be reinstated for a minimum of three months, should the business later discover the role to be essential or trade picks up. Other procedures, such as consultation periods, must be adhered to and wherever possible, alternative roles be offered to any employees ‘at risk’ from redundancy.

Frustration of contract covers the ability of the employee to complete their work to an acceptable standard. If they are unable, for one of many reasons, this may lead to a fair and legal dismissal. If, for example, an employee is unfortunate enough to have an accident or long term illness that impedes their capability and working capacity, this may lead to frustration of contract. Many employers today consider the employee’s history of illnesses during the course of their employment at that establishment as a means of deciding fairly what is and is not frustration of contract. For example, less sympathy would be required for an employee who regularly takes Mondays off due to weekend drinking. An employee who regularly phones in sick with minor illnesses over a short period of time could equally be deemed to be in frustration of contract as he / she is not deemed capable of honouring their contract.

Dismissal can be due to employee conduct. This can be fair and legal both on and off the business premises. Activities such as fighting, spitting, swearing or lewd behaviour at work can lead to dismissal. Fighting at work is usually grounds for dismissal through gross misconduct; the employee concerned will be put on suspension with pay pending investigation. Other, less serious, infractions may lead to a verbal warning, further infractions within a certain time scale then lead to written and then final written warnings. After this, an employee may be fairly dismissed. The employee conduct is also considered off site whenever their actions may affect the good reputation of the business they are representing. An off duty employee who is still wearing their work uniform and involves themselves in a drunken brawl or indecent exposure is effectively committing an act of gross misconduct and may face dismissal as a result.

An employee may be guilty of gross negligence and as such subject to dismissal. Basically, the employer owes a duty of care to all its staff, customers and visitors and is legally responsible for the actions of its employees where the employee carries out his / her work duties. An act of gross negligence may occur where an employee fails to wear a hard hat when entering a building site or operates machinery without the necessary training or physical safety guards. Due to the potential accident liability arising from the employee’s actions, this would be classed as gross negligence and is fair and reasonable grounds for dismissal.

Dismissal on the grounds of some other substantial reason is a broad category designed for circumstances that are not specifically covered in one oft he other categories. An example of reasonable dismissal on these grounds would include an employee being sentenced to a prison sentence.

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