Unjustifiable Dismissal Notes

Labour Law Lecture 5th May: Unjustifiable Dismissal:--Dismissal Resignation Mutual Consent Abandonment Frustration Forms of Dismissal: Summary dismissal. - Instant dismissal, without notice. Employers are only entitled to summarily dismiss a worker for serious misconduct. Serious misconduct often depends on the particular situation. Judicially defined as "misbehaviour that goes to the heart or root of the contract" e.g. deliberately clocking in someone elses time card, or consuming alcohol or drugs at work, fighting, deliberate and serious disobedience, sexual harassment, serious negligence, refusal to follow safety rules. Sometimes what constitutes serious misconduct may be defined in the contract in an express term... "includes the following...". Just calling conduct 'serious' does not necessarily make it serious - ERAuthority or EC will still decide on it. "White hot dismissal", a dismissal that takes place in an atmosphere of anger or acrimony. Dismissal with notice - For sufficient but less serious reasons than serious misconduct e.g. persistant lateness, incompetence. Can also be redundancy. Often in dismissal with notice they'll say you have two weeks notice but they'll just pay the two weeks to get the employee to leave. Wellington Road Transport v Fletcher Construction Worker took part of a roll of wire. Dismissal with notice. Constructive dismissal. - Resignation at the initiative of the employer. Employer has done something to make the employee resign - option of resigning or being dismissed. This sort of dismissal isn't necessarily justifiable. Often the employer is trying to be generous, giving them a break. - If employer follows a course of conduct with the deliberate purpose of forcing the employee to resign. Happens often in NZ. - Employer commits a serious breach of duty that leads the employee to resign, e.g. sexual harassment. Woolworths Wrongful Dismissal: Abolished by s113 ERA. Will be relevant in other jurisdictions in the Commonwealth. Unjustifiable Dismissal: s103(1)(a) ERA. Cause of action for unjustifiable dismissal is the principal form of employment protection in NZ. It is why dismissing employees is perceived to be difficult. In reality when people get dismissed, the majority of situations are not just a one-off bad thing that

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