Unjustifiable Dismissal Part 2 Notes

Labour Law Lecture 10th May: Unjustifiable Dismissal: In Britain, lots of cases on 'Unfair Dismissal'. Page 3 handout. What's reasonable for your employer to do in the circumstances; a matter of fact and degree. Important for Exam. * S103A ERA - Oram case is helpful on this point. * s4 ERA good faith. Particularly important in collective bargaining. Also an individual aspect to good faith. Involves not being deceptive or sneaky. * Various objects in the legislation - s3 sets out the objects of the ERA. Procedural Fairness: Process that the employer has gone through in arriving at a decision to dismiss. Auckland City Council v Hennssey 1982, CA: - Important for setting out the first definition of what is unjustified. Unjustified basically means not in accordance with justice or fairness. - Also important because for the first time it said as a definitive matter that a dismissal can be unjustified on procedural grounds alone. Before this case you could argue that even if the process was bad the worker deserved it substantively. - Important analogies between judicial review and this aspect of labour law. Very difficult to strike down a decision on the basis of substantive grounds in judicial review, because the threshold is so high; in most judicial review cases, they are won on the basis of procedural flaws in the process followed by the decision-maker. - Leading case on procedural fairness. Auckland CC dismissed a parking lot attendent by means of a letter while he was on leave. Council did not hear what Hennessy had to say for himself. Lost employment without having the matter put to him. Hennessy was summarily dismissed for punching a person in the parking lot. Some evidence that he might have been acting in self defence or he had been provoked. Hoons driving around in parking lot on motorcycles. CA found dismissal was flawed because employer did not give Hennesy the option of explaining or mitigating his actions. Failure to afford an opportunity for a worker to explain their side of the story results in a finding of unjustified dismissal. Any other serious procedural flaw can also vitiate a decision to dismiss. Hennesey should have been given an opportunity to explain his conduct, employer learned about what had happened only from witnesses, Arbitration Court found that there may be reasons of excuse. Some situations where employer might get away with not affording natural justice, e.g. where employee has been in employer's face? May be a small number of cases where behaviour is so outrageous/intolerable that you don't really need to inquire more. Wellington Road Transport IUOW v Fletcher Construction Co Ltd 1983 - Important early decision of the Arbitration court that picks up from Hennesey's case. - Answers the question that if procedural flaws can render a dismissal unjustifiable, what is the appropriate test? What threshold does that procedural unfairness have to meet?

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