What makes a worker's dismissal unjust

A very impressive senior professional confided one day: “I am defined by the work I do.”

And I began to think about that as largely true for those of us in the workforce. Most of our waking hours are spent getting ready for work, going to work, working, and going home from work.

If you happen to enjoy the work you do, that makes for a fulfilling life. If you don’t, it is often unproductive and stressful.

In my teens, when I got my first job, a very wise mentor told me that the words “be happy at your work” did not mean "Choose a job that makes you happy." It meant, no matter what you end up doing to earn a living, find some way to make yourself happy doing it.

I never forgot the shock of that.

School, I soon realised, is where you or your parents, or the government will pay someone else to motivate you to learn, to make you useful to the world. Work is where you get paid to make yourself useful, motivated and so productive.

I thought about that for a long time until I realised that motivation is not what someone else can do to you. It is something only you can do to yourself. That is when you start to grow up.

In industrial relations, it is why the subject of dismissal or termination of a job you hold is so important. For many people, like severance or even retirement, it is a kind of death, part of how we define ourselves, with all kinds of emotional and economic consequences.

Dismissal and what it means under the law, when it is justified, when it is regarded as “harsh, oppressive, unreasonable and unjust,” and when it is regarded as “wrongful” is something anyone going into paid employment as employer or employee should understand the mechanics of. Because even when someone is dismissed when caught stealing from his employer, the Industrial Court can still order that he get his job back if it is not done properly.

Let us start with a judgment that came out in 2013 for misconduct. Two workers, a driver and a loader, were dismissed for gross misconduct. Please note that they were not dismissed for theft…that is a criminal charge. They were dismissed for misconduct. There is a reason for that. In this case it was for defrauding their employer, a paint manufacturer, by stealing paint.

There were several lessons that need to be learned from this case. The first is that the power of a judgment of the court must be taken into consideration. By section 18 (1) (a) in the Industrial Relations Act, a decision of the court in any matter, and I quote: “shall not be challenged, appealed against, quashed or called in question in any court on any account whatever.”

Strong words, but it is what it is.

The only exemption would be, of course, if there were some illegality in the presentation of the case (fraud, a legal mistake, etc).

The second lesson, equally important in light of the first, as the court also has the power to reinstate a dismissed worker whether the employer agrees or not, is that a dismissal must be procedurally correct. Cause alone (even theft) will not be sufficient.

In the 2013 case, the workers were orally dismissed which, in the opinion of the court, made the dismissals: “harsh and oppressive and not in accordance with the principles of good industrial relations practice.” An oral dismissal alone isn’t enough.

Lesson number three is that the employee must be given a reason in writing clearly stating why the dismissal is taking place and, number four, the dismissal is done by a person authorised to do so.

The next absolutely essential procedural point is that, come hell or high water, as my grandmother used to say, the worker must be afforded a disciplinary hearing at which they are given a chance to be heard in their own defence.

This is an international human rights law. It does not have to be a full tribunal, although that may help if it is the company policy. It needs to be a hearing before a person in the company is authorised to make the decision or to effectively recommend the decision (the HR manager, for example). And under no circumstances must the decision to dismiss be taken before the worker is given a chance to be heard.

There may be, and often are, mitigating factors the employer is not aware of.

A junior employee may, for example, have taken the paint on the oral request of another senior manager in the company not in their direct line of command whose orders they were accustomed to obeying, under the assumption that they could do so without filling in the requisition forms, not knowing otherwise.

Under common law, which is accepted as part of good industrial relations practice, a dismissal may also be wrongful because it did not follow the correct procedures in the collective agreement or in the individual’s contract of employment, although it was not “harsh or oppressive.”

In an often-quoted appeal case between Fernandes Distillers and TIWU (the Transport and Industrial Workers Union), Sir Hugh Wooding stated that if an employee was dismissed on an impulse or a whim after many years of unblemished service, but after being given a month’s notice or payment in lieu, in accordance with company policy, it would not be wrongful according to contract law, but it would obviously be harsh or oppressive or not in accordance with good industrial relations, which is the industrial-relations standard.

Industrial relations is human relations and may go beyond the law. A dismissal may be for lawful and reasonable cause, but it must also be procedurally correct to be considered just by the Industrial Court.