EMP3
UNFAIR DISMISSAL PLAN
- S95 & 135 ERA 1996 – Dismissal arise in three situations;
Situations? 1) Where the contract is terminated by the employer either with or without notice.
2) Where a limited-term contract expires or otherwise terminates without being renewed.
3) Where the employer terminates the contract, with or without notice in circumstances due
to the employer’s conduct.
Steps:
1. Eligibility
Overall U.D 2. Dismissal
3. Reason for dismissal
4. Consider fairness of dismissal
5. Remedies
6. Consider other claims
1. Eligibility
Is the claimant eligible to bring an unfair dismissal claim?
Claim must be brought within the Time Limits
- 3 months and BACK day from EDT (s111)
- EDT (s97) =
Termination with notice = date notice expires.
Termination without notice = date of the dismissal.
Even if there is PILON.
Where notice is communicated by letter, the date the dismissal takes effect is the date the employee actually
read the letter and not when it was written, posted or delivered
Failure to renew fixed contract = Date the fixed term expires.
s97(2) - Where an employer dismisses an employee with less than the statutory minimum period of notice required
by ERA 1996 s.86, the EDT is deemed to be the date on which the statutory notice have expired
Constructive dismissal =
Date employee departs or;
Date employee’s notice expires (if the employee gives notice).
Must be an “Employee” (s94)
Employee = “An individual who… works under… a contract of employment” (s230(1)).
Evidenced by existence of written statement of terms: these must be given to “employees” i.e. contract of service
(ERA 1996, s1(1)).
Must not be an excluded class
Certain classes of employees cannot claim unfair dismissal e.g. police service, ‘share’ mariners.
Simply say employee is not in an excluded class.
Must have sufficient period of continuous employment
2+ years if employee started work ON or AFTER 6th April 2012.
1+ year if employee started work BEFORE 6th April 2012.
From: Date employment commenced (check contract).
To: The effective date of termination (EDT) (s108(1)).
Employees dismissed because of pregnancy do NOT need to show period of continuous employment.
It is automatically unfair to dismiss an employee because she is pregnant.
This means that once the tribunal has established that the reason for the dismissal falls under this head, it will
not have to go on to consider the reasonableness of the decision under s 98(4).
UNFAIR DISMISSAL PLAN
- S95 & 135 ERA 1996 – Dismissal arise in three situations;
Situations? 1) Where the contract is terminated by the employer either with or without notice.
2) Where a limited-term contract expires or otherwise terminates without being renewed.
3) Where the employer terminates the contract, with or without notice in circumstances due
to the employer’s conduct.
Steps:
1. Eligibility
Overall U.D 2. Dismissal
3. Reason for dismissal
4. Consider fairness of dismissal
5. Remedies
6. Consider other claims
1. Eligibility
Is the claimant eligible to bring an unfair dismissal claim?
Claim must be brought within the Time Limits
- 3 months and BACK day from EDT (s111)
- EDT (s97) =
Termination with notice = date notice expires.
Termination without notice = date of the dismissal.
Even if there is PILON.
Where notice is communicated by letter, the date the dismissal takes effect is the date the employee actually
read the letter and not when it was written, posted or delivered
Failure to renew fixed contract = Date the fixed term expires.
s97(2) - Where an employer dismisses an employee with less than the statutory minimum period of notice required
by ERA 1996 s.86, the EDT is deemed to be the date on which the statutory notice have expired
Constructive dismissal =
Date employee departs or;
Date employee’s notice expires (if the employee gives notice).
Must be an “Employee” (s94)
Employee = “An individual who… works under… a contract of employment” (s230(1)).
Evidenced by existence of written statement of terms: these must be given to “employees” i.e. contract of service
(ERA 1996, s1(1)).
Must not be an excluded class
Certain classes of employees cannot claim unfair dismissal e.g. police service, ‘share’ mariners.
Simply say employee is not in an excluded class.
Must have sufficient period of continuous employment
2+ years if employee started work ON or AFTER 6th April 2012.
1+ year if employee started work BEFORE 6th April 2012.
From: Date employment commenced (check contract).
To: The effective date of termination (EDT) (s108(1)).
Employees dismissed because of pregnancy do NOT need to show period of continuous employment.
It is automatically unfair to dismiss an employee because she is pregnant.
This means that once the tribunal has established that the reason for the dismissal falls under this head, it will
not have to go on to consider the reasonableness of the decision under s 98(4).
