The paper "Dismissal of Employees Issues" is a wonderful example of a Business Assignment. The law of unfair dismissal is governed by the Employment Rights Act 1996. If an employee has the requisite period of continuous service to qualify for unfair dismissal or if an employee falls within one of the exceptions that do not require qualifying service, the employee will be able to claim for unlawful or unfair dismissal. This Act gives everyone the right to a fair hearing, among other things, that an employee in any organization has the right not to be unfairly dismissed. An employer is able to dismiss his or her employees under the following grounds: 1) conduct; 2) capability or qualifications; 3) redundancy; 4) some other substantial reason. Analysis: In this case study, Raj an employee of Accounting for Small Business (AFSB) was improperly dismissed by his employer.
The entire process that led to Raj unfair or unlawful dismissal is completely flawed and un-procedural thus rendering his dismissal to be wrongful, illegal, unlawful and unconstitutional. The Managing Director, Glen declined to summon any witness in the disciplinary hearing who allegedly witnessed the alleged insubordination and gross misconduct.
According to Employment Rights Act 1996, a fair hearing an accused employee is presumed innocent until he found to have committed the offense which the employee is being accused of, the employee should be informed of the charge, the employee should be given adequate time to prepare for a defense, to choose to be represented by a witness or an advocate, to be informed in advance of evidence the people in the disciplinary committee was going to rely on and to have access to that evidence against him.
In the case study, Raj assertion that Sara did not have any witness and the recommendation that Raj should be dismissed for insubordination was taken without any evidence. Before an employer dismissed an employee, the law requires the employer to have a good reason for the dismissal and the process of that dismissal should be carried out in a fair manner. What is fair will depend on the situation but any relevant legislation. An employee before being called for disciplinary should be given notice and be told in writing the things he or she is being accused of and thereafter be given an opportunity to defend himself or herself before the disciplinary hearing.
Once an employee has been given a notice, then the employer is supposed to investigate any allegations of misconduct made against the employee and this should be without prejudice, unless, the misconduct was serious and it does not warrant an employee to be given a notice. In the case study, Raj was not given notice of hearing thus making his dismissal to be unfair.
The issue that the Court will require to determine is whether or not the Raj dismissal was unlawful or unfair. Since insubordination did not warrant summary dismissal, then the Managing Director, Glen would have given Raj a written notice of hearing. The need for notification and hearing can be found in Section 41 of the Unfair Dismissal Act, 2007. At first glance, an employee should be dismissed if the employee is late. But, according to the Fair Work Commission, an employee cannot be dismissed the first day the employee report to work late.
For example, in Cook v Thomas Linnell & Sons  ICR 770, an employee was dismissed because the employee reported working late on four different occasions. The matter was taken before a Fair Work Commission tribunal, and the tribunal ruled that the failure on the part of the employer to ensure the employee report to work, thus the employer did not have enough reason to dismiss the employee, an employer cannot simple dismiss an employee for reporting to work late. This act will not warrant immediate dismissal.
The tribunal argued that an employer should have clearly outlined workplace policy that shows an employee reporting to work late is an offense, and each time an employee report to work late, they should be given a warning. And after a series of warnings have been given, then an employer will have a ground to dismiss the employee.
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