Law on Unfair Dismissal - the Case Analysis Example

Law relevant to unfair dismissal

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The issue on whether Lucy has been unfairly treated is subject to the interpretation of the Employment Act. Under section 10 of the act, an employee should be given a chance to fair hearing before she/he is dismissed. The case at hand has shown that Lucy was not heard by her employer before dismissal, indicating a breach of the employment law (section 127B). Lucy is likely to succeed if the case goes to tribunal hearing because in accordance with section 94 (1) an employee has a right of not being subjected to unfair dismissal. The unfairness of Lucy's dismissal is further emphasized by the provisions of section 945 (1) of the Employment Act that insists on providing a notice of dismissal before the termination date. Under section 98 (2) and section 92 (1) of the employment act, the dismissal is fair if and only if the employee is declared redundant, lacks in capacity and qualification to handle the job or is involved in a grave ethical misconduct. Section 92 (1) of the employment act also indicates that Lucy should have been given a written statement for the reason of his/her termination of services within two weeks after the dismissal.

Qualifications for unfair dismissal

Lucy manager broke all the provisions of section 95(1) and 95(2) of the employment rights of 1996, which state four situations when dismissal is unfair.

1. When an employees contract is terminated without notice

2. When the employer reassigns the employee during the term of the existing contract

3. When procedures relating to termination of a contract are not followed.

4. When the employed do not allow the submission of an employee in defense

In this case, we see that Lucy was not given any prior notice to termination of her contract as it was abrupt while her contract was still in progress. The procedure for contract termination was not followed as she even doesnt receive a written termination statement and she gets fired in an unprofessional manner in the midst of an argument. During the argument, Lucy is not given an opportunity to defend her actions.

BHS test

BHS test has three key elements: establishing whether the employer believed that the employee was guilty of misconduct, having reasonable grounds to base that belief and whether the investigation was carried out by the employer regarding the incidence before dismissal.

It is expected that an employer carries out a reasonable investigation for them to meet the Burchell test. Also, the employer needs not to examine each explanation that the employees put forward. In Lucys case, this is not done. The ACAS Code states that any examination ought to be executed out by another individual from the individual who consequently carries out the appeal or disciplinary hearing. It can be a manager, an HR representative or someone in possession of specialist knowledge. The ACAS Code also provides that the examination ought to be conducted immediately. However, this lacks in Lucys case. The employer does not carry out any investigation into Lucys case.

Based on the BHS analysis, Mark, the employer, believed that Lucy was guilty of misconduct by not reporting the case through the correct channel. Given the situation that the spillage occurred, the employer had no reasonable ground to base the belief that Lucy was guilty of the misconduct as she did the best she could in her situation, in containing the spillage, delivering the products, and reporting the incident to her superior. However, the employer had not carried out sufficient investigation as required before dismissing Lucy. The employer dismissed her based on emotional reaction, while Lucy left the office feeling wronged and took the step to file the complaint. The case can be dismissed due to lack of procedural fairness in reference to Cannon v Poultry Harvesters Pty Ltd [2015] FWC 3126.

Procedural fairness

Additionally, The ACAS Code according to Lucys situation indicates that she should not be dismissed because of her mistake of reporting the matter through the wrong channel but she should be given a warning and an opportunity to implement improvement. Given that the dismissal was not performed in accordance with the recommended procedure, the case loses its credibility that is required under section 98 (4) that asserts that the fairness of the dismissal depends on the ruling on whether the employee acted reasonably in dismissing the employee. The employment law under section 111 (1) allows Lucy to file her complaint as it indicates that any person subjected to unfair dismissal has a right to present a complaint to the tribunal. According to Lucys case, her employer did not follow the above procedures. Her conduct though being not according to the organizational procedure, because she did not follow the required procedure in reporting the case she still, according to the law, had all the rights retain her job whether under a warning or any other punitive measure. She was not acting under normal circumstances as provided in her contract. She had a lot to do because of the absence of her workmates. These factors according to the law have to be put into play in determining her case in terms of punitive measures.

Remedies

The employer should consider his decision because on very strong grounds this is unfair dismissal to Lucy. He should consider reinstating her, or revoking her termination before the hearing commences, he can also bring her back to the company in a different capacity. Compensating her could also be a possible remedy.

Conclusion

By using the Burchell test, we can, therefore, conclude that Lucy has no case to answer. This is in the light of the fact that although the employer believes that she was guilty of misconduct, he fails to follow the right procedures of her dismissal.

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