You’re Fired! Looking at Legal Aspects
[Written by attorney Kyle Masters, an associate at Trott & Duncan]
In the current climate of economic uncertainty, the last thing an employee wants to have are doubts about is job security. Is it possible for an employer to ‘fire’ an employee on the spot?
This article will examine the protections provided to an employee by the Employment Act 2000 (‘the Employment Act’) and the common law against an on the spot firing.
The terms and conditions of employment provided in the Employment Act do not apply to every employee. Casual and part time employees (terms which are defined by the Employment Act), for example, are not afforded the same protection under the Employment Act as full time employees.
The terms and conditions of employment set out in the Employment Act are not a substitute for any other agreement between employee and employer except in the circumstance where the terms of that agreement are less favourable to the employee than those found in the Employment Act. This means that the rights afforded to employees by the Employment Act are the minimum rights that an employee is entitled to.
In the normal course of events an employee must be given notice in writing in before termination of his employment. An employee paid monthly, for example, is entitled to one month’s notice in writing before termination. An employer has the option to pay an employee in lieu of this notice thus ending the relationship immediately. This payment in lieu also includes the payment of any other benefits accrued up until the end of the employment or payment period which includes, for example, severance pay.
There are circumstances under which an employer is not obliged to give notice or payment in lieu of notice before dismissing an employee. In this circumstance, an employee is dismissed immediately without severance pay. This form of dismissal is called summary dismissal. It is permitted in circumstances where an employee is guilty of serious misconduct.
This bad behavior must also either (a) be directly related to the employment relationship; or (b) have a detrimental effect on the employer’s business. This misconduct also has to be so serious that it would be unreasonable to expect the employer to continue the employment relationship. These are all facts which must be proven by the employer if the dismissal is challenged as being wrongful.
In the event a summary dismissal is challenged, a tribunal will take into account the context of the behavior complained of when making a decision about whether summary dismissal was justified. The context within which the misconduct arises is nearly as important as the misconduct itself. What may be acceptable behavior by a motor mechanic working at an auto shop will not necessarily be acceptable for a children’s ballet school teacher.
Take the case of theft by an employee for example, this is obviously misconduct. It is a criminal offence which involves an element of dishonesty. Stealing from your employer or during the course of your employment will also have a detrimental effect on their business. There is no doubt about that. It may also be unreasonable to expect an employer to keep a thief on staff. But let us not forget to examine the context.
The amount of cash or goods taken, and the surrounding circumstances of the theft may shed a different light on the offence and, according to the law should inform punishment given to the employee. Let us take the example of a mason’s apprentice at a construction firm who is found to have taken a trowel, a bucket, some cement and 4 cement blocks from a construction site home with him without permission. When asked about the theft he admits it and says the reason he took those items was because he wanted to practice building a course of block on his day off. This explanation is discovered to be true.It was plainly wrong of the apprentice to steal the items. Some form of punishment is clearly in order but I am not convinced the law would dictate he should be summarily dismissed because of it. If that same apprentice had taken those items to do some free- lance work on his day off in return for payment without his employer’s consent, that may be a different story.
When faced with the possibility of dismissing an employee, an employer is expected to act reasonably. This means taking into account all of the circumstances including the explanation given by the employee for the misconduct. There are not many hard and fast rules for disciplinary action in employment relationships; the touchstone of employee discipline is reasonableness. It is still possible to be fired on the spot, but the punishment should match both the conduct of the employee and the relevant surrounding circumstances.
- Kyle Masters
[If you have any legal questions of your own for Mr Masters to answer, feel free to email them to info@bernews.com]
Q: Are the laws for a non-custodial parent paying child support different if the couple were married versus if the couple were not???
Zzzzz
Can a former employee of a prominent hotel file a lawsuit, claiming that he was wrongfully terminated because the hotel violated health and safety standards, by allowing the kitchen to be over run with cockroaches, mice and other infractions?
The employee became frustrated due to lack of response from the hotel management vented in a banquet room that was unoccupied by hotel guest.
At one point there were so many cockroaches crawling over the floors, that the health inspector and a shop steward were seen stomping on them.