EMP3
UNFAIR DISMISSAL
An employee has a right not to be unfairly dismissed (s94 ERA).
The employer must be able to show; a) He had a good reason to dismiss and b) He acted fairly in
handling the dismissal
At common law, an employer can dismiss any employee whenever he chooses, whether he has any
good reason or not
Provided he gives full notice and otherwise complies with the contract, the employee has no remedy
Overview:
Eligible employee – Must be an employee (not worker) and 2 years continuous emp (s108)
Dismissal – Employee must have been dismissed
Potentially fair reason for dismissal – Burden on employer
Fairness – If the reason for dismissal is within 1/5 permitted reasons, the tribunal must
decide whether the employer acted reasonably under ERA 1996, s98(4) in dismissing the
employee
Remedies
Reasons for dismissal
Employer must be able to establish that the only or principal reason for dismissal was a potentially fair
reason
Burden of proof is on employer to show that the dismissal was under 1/5 permitted reasons
If unable to show 1/5, then dismissal will be unfair
Same for actual/constructive dismissal – 1/5 reasons needed
Where employee is basing claim on CD, reason for dismissal given by the employer will be the reason
for which the employer allegedly breached the contract
Employer should try to ensure that he states the correct reason for dismissal on ET1 to avoid being at
risk of being held to be unfair
Dependent on facts, Court may accept if wrong reason given mistakenly, but not intentionally
S98(1)(a) requires employer to show reason / or if more than one, the principal reason
s98 ERA 1996 outlines the process for determining whether a dismissal is fair or
unfair
Under this section, the grounds for fair reasons are:
a) An employee’s capabilities or qualifications to the job (s98(2)
(a))
Five permitted reasons b) Relating to conduct (s98(2)(b))
c) Redundancy (s98(2)(c))
d) A statutory duty or restriction prohibiting the employment
being continued / aka Illegality (s98(2)(d))
e) For some other substantial reason (SOSR) (s98(1)(b))
Earl v Slater (1973) - Sir Donaldson states that a dismissal for a fair reason could
still be considered unfair if an employer fails to follow the dismissal procedure
1. Capability and Relates to the capacity or qualifications of the employee for performing his work
Qualifications Applies to cases where the employee is incapable of doing the work
s98(2)(a) which the employee was employed to do
Incapability:
Incapability to do job as incompetent
Inherent ability to perform the job
Inability to do job due to illness or injury
- Capability defined in s98(3)(a) = “Assessed by reference to skill, aptitude,
health or any other physical or mental quality” potential for overlap
between conduct and capability
2. Conduct s98(2)(b) - Conduct = Has a wide definition but usually refers to misconduct within the
UNFAIR DISMISSAL
An employee has a right not to be unfairly dismissed (s94 ERA).
The employer must be able to show; a) He had a good reason to dismiss and b) He acted fairly in
handling the dismissal
At common law, an employer can dismiss any employee whenever he chooses, whether he has any
good reason or not
Provided he gives full notice and otherwise complies with the contract, the employee has no remedy
Overview:
Eligible employee – Must be an employee (not worker) and 2 years continuous emp (s108)
Dismissal – Employee must have been dismissed
Potentially fair reason for dismissal – Burden on employer
Fairness – If the reason for dismissal is within 1/5 permitted reasons, the tribunal must
decide whether the employer acted reasonably under ERA 1996, s98(4) in dismissing the
employee
Remedies
Reasons for dismissal
Employer must be able to establish that the only or principal reason for dismissal was a potentially fair
reason
Burden of proof is on employer to show that the dismissal was under 1/5 permitted reasons
If unable to show 1/5, then dismissal will be unfair
Same for actual/constructive dismissal – 1/5 reasons needed
Where employee is basing claim on CD, reason for dismissal given by the employer will be the reason
for which the employer allegedly breached the contract
Employer should try to ensure that he states the correct reason for dismissal on ET1 to avoid being at
risk of being held to be unfair
Dependent on facts, Court may accept if wrong reason given mistakenly, but not intentionally
S98(1)(a) requires employer to show reason / or if more than one, the principal reason
s98 ERA 1996 outlines the process for determining whether a dismissal is fair or
unfair
Under this section, the grounds for fair reasons are:
a) An employee’s capabilities or qualifications to the job (s98(2)
(a))
Five permitted reasons b) Relating to conduct (s98(2)(b))
c) Redundancy (s98(2)(c))
d) A statutory duty or restriction prohibiting the employment
being continued / aka Illegality (s98(2)(d))
e) For some other substantial reason (SOSR) (s98(1)(b))
Earl v Slater (1973) - Sir Donaldson states that a dismissal for a fair reason could
still be considered unfair if an employer fails to follow the dismissal procedure
1. Capability and Relates to the capacity or qualifications of the employee for performing his work
Qualifications Applies to cases where the employee is incapable of doing the work
s98(2)(a) which the employee was employed to do
Incapability:
Incapability to do job as incompetent
Inherent ability to perform the job
Inability to do job due to illness or injury
- Capability defined in s98(3)(a) = “Assessed by reference to skill, aptitude,
health or any other physical or mental quality” potential for overlap
between conduct and capability
2. Conduct s98(2)(b) - Conduct = Has a wide definition but usually refers to misconduct within the
