Legal Article - Employment Law

What is an Employment Dismissal?

A dismissal occurs when;

• The employer terminates the employment contract, with or without notice

• The expiry of a fixed term contract without its renewal

• The employer refuses to allow an employee to return to work after a period of Maternity absence where they have a legal right to return

• The employee resigns, with or without notice, because the employer’s conduct has substantially breached an express or implied term of the contract of employment (known as Constructive Dismissal) e.g. arbitrarily demotes an employee to a lower rank or poorer paid position, or provides an unsafe system of work, or undermines trust and confidence between the employer and employee, or unilaterally reduces pay or takes away an important fringe benefit.

If, after being given notice of dismissal by the employer, an employee gives due notice, whether written or not, to terminate the contract of employment at an earlier date, the employee is still regarded as dismissed by the employer, but the dismissal date is the date that the employee’s own notice takes effect.

When a contract of employment is terminated for the following reasons it does not count as a dismissal, so an employee cannot claim Unfair Dismissal.

The reasons are:

• The employee resigns with or without notice, so long as he is not forced to resign by the employer’s actions. Once notice has been given the employee cannot unilaterally withdraw it, but if the employer cuts short an employee’s notice period this converts the resignation into a dismissal

• Both parties voluntarily agree to terminate the contract e.g. to retire early.

Note, however, that voluntary redundancy in response to a genuine redundancy is still a dismissal, and when an employee fails to return to work after an extended holiday, a dismissal still occurs even if the employee signed a statement that failure to return will result in automatic termination of the contract

• The employee is taken on to carry out a specific task, completion of which will terminate the contract without the need for a dismissal or resignation (i.e. termination by performance)

• Some contracts are automatically terminated by operation of the law. These normally occur when a business closes due to the death of the owner or business failure (a redundancy payment may be due however)

• In a transfer of undertakings situation an employee objects to becoming an employee of the transferee company

• The contract is frustrated when, through neither parties fault, some reasonably unforeseeable event occurs which makes the contract impossible or unlawful to perform e.g. sudden serious illness or disability or imprisonment of an employee. This is very difficult to prove and an employer is recommended to treat it as a dismissal and follow fair dismissal rules.

Published: 03 Jun 2011


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