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Managing Dismissal
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Managing Dismissals
Chapter 11
Learning Objectives
1. Understand the importance of work in capitalist societies and explain two different perspectives on dismissals
2. Discuss employee initiated decisions to leave the employment relationship
3. Identify the broad categories of employer initiated decisions to terminate the employment relationship
Learning Objectives
4. Outline the bases upon which a fair dismissal may be deemed unfair and those who have access to remedies for unfair dismissal
5. Differentiate between unfair and unlawful dismissal
6. Discuss consequences if dismissals are not conducted correctly
Introduction
• Why can ER be ended?– Individual decisions– Economic circumstances– Technological change
• What is the impact?– Depends on who has control in making
the decision to terminate the relationship
Work and Dismissal: Some Central Ideas
• Work is a central concept in capitalist societies
• Why do we work?– people work to live– people work to consume– people work for intrinsic rewards– people work from moral necessity
Work and Dismissal: Some Central Ideas
• Economic rationalist perspective:– supports managerial prerogative– seeks to reduce interventions into
market and employment relationship– seeks to allow employers to terminate
employment without having to follow rules set by external bodies
– focuses on individual
Work and Dismissal: Some Central Ideas
• Social justice perspective:– focuses on fairness– argues that negative consequences arise
from power inequalities– argues that state must intervene to redress
power imbalances between employers and workers
– focuses on groups of individuals and favours collective organisation
Employee Decision to end Relationship
• Many individual reasons, but 2 methods:– With notice
• resignation
– Without notice• abandonment• frustration
• Notice is period required to be given, or be paid in lieu, if ending ER so alternative work or workers can be found
Employee Decision to end Relationship
With notice
• Worker at fault– performance issues– misconduct
• No worker fault– redundancy/retrenchment
Employee Decision to end Relationship
Without notice
• Worker at fault– summary dismissal: immediate dismissal (no
notice or pay in lieu) because conduct has destroyed ER
– degree and consequences are important
• No worker fault– frustration
Unfair Dismissal
• Unfair dismissals are those judged ‘harsh, unjust or unreasonable’ by courts or tribunals
• Appeals against unfair dismissals emphasise procedural fairness and having valid reasons for dismissal
• Recent federal government reforms have reduced numbers of workers with recourse to appeals against unfair dismissals
Possible outcomes of unfair dismissals
If a dismissal is found to be unfair, the tribunal may award:
• reinstatement– in same or similar position with continuity
of employment and conditions
• re-employment– in same or similar position, but as new
employee
• monetary compensation
Exclusions from Unfair Dismissal
• Many workers excluded from appealing unfair dismissals — slight differences between jurisdictions:– workers engaged for specific period of time
or specific task – probationary employees in first 3-6 months
of employment – casual workers employed for less than
12 months– trainees employed under traineeship agreements
Exclusions from Unfair Dismissal
• Many workers excluded from appealing unfair dismissals (cont’d):– Employees under special arrangements
that provide particular protection in respect of termination of employment
– Higher paid non award employees – Federal WorkChoices Act 2006 excluded
workers from all organisations with less than 100 workers
Unfair or unlawful dismissal?
• Unfair dismissal concerns fairness in method and valid reasons
• Unlawful dismissal concerns breaching legislation by dismissing for an invalid or prohibited reason
• If decision to dismiss relates to a characteristic of a worker or an activity they have a right to engage in, rather than the requirements of the job, performance, or economic circumstances of the firm, the dismissal may be unlawful
Unlawful Dismissal
• Prohibited reasons fall into several categories:– discriminatory matters
– membership or non-membership of a union and associated activities
– filing a complaint or taking action against employer for alleged violation of laws or regulations
– refusing to negotiate a Workplace Agreement
– temporary absence from work
Outcomes of unlawful dismissals
• Reinstatement
• Monetary compensation
• Employer may also be fined for breaching legislation
• Unlawful dismissal actions can cost in excess of $40 000
Minimising Dismissal Problems
Refine recruiting activities:
• Develop detailed job descriptions
• Ensure accurate advertisements
• Base interviews on essential attributes required for the job
• Provide a realistic job preview
• If appropriate, test or assess essential skills for the job
• Consult referees or past employers
Minimising Dismissal Problems
For new employees:• Establish formally agreed probationary period• Clearly establish workplace rules and
requirements• Advise of required performance standards
and workplace expectations• Provide feedback in probationary period and
regularly during employment, and take any corrective action necessary
Minimising Dismissal Problems
If employees are not performing to standard :• Discuss problems and clarify performance
requirements standard• Allow employees to respond to concerns about
their performance• Provide employees with opportunity to improve
within a set time frame, ensuring there is a clear understanding of what improvements are required
Minimising Dismissal Problems
If employees are not performing to standard (cont’d):
• Provide regular feedback on performance
• Document all issues• Implement dispute resolution procedures
to ensure problems are resolved• Involve union representatives if
workplace is unionised
Summary
• Work is essential to survival for most workers in capitalist societies, so dismissal from work can be catastrophic
• Industrial tribunals attempt to balance economic rationalism and social justice– acknowledge managerial prerogative
– assert procedural fairness
• Employees may end ER for many reasons but generally have plans
Summary
• Employers may dismiss workers for performance, misconduct, operational or economic reasons, or factors outside their control
• ‘Harsh, unjust or unreasonable’ dismissals can result in unfair dismissal appeals if workers meet specified criteria
• Workers dismissed for discriminatory or other prohibited reasons can take unlawful dismissal action — but this is costly
Summary
• Organisations that implement equitable policies and procedures can reduce direct and indirect problems when terminations are required
Summary
• Poor dismissal procedures have direct and indirect effects on an organisation:– high turnover– reduced morale– reduced productivity– absenteeism– reduced innovation and input