Assertion: dismissal | /r/HasProperty | fair
Facets:
value: substantively
type: DEGREE
value: if
type: DEGREE
value: either way
type: DEGREE
value: in order to avoid liability
type: PURPOSE
value: potentially
type: DEGREE
value: under the fair work act
type: OTHER
value: in most cases
type: DEGREE
value: on the basis
type: CAUSE
value: legally
type: MANNER
value: substantially
type: DEGREE
value: as process
type: MANNER
Source sentences:
text: In making a claim of unfair dismissal, the employee needs to demonstrate that they were dismissed; to successfully defend the claim, the employer will then need to show that this dismissal was fair because it was for a specific reason.
text: So if you qualify to bring a claim and there was a dismissal, your employer has to prove that the dismissal was a fair one, that is, that there were fair grounds for the dismissal and that fair procedures were followed.
text: From the outset, it is important to state that no dismissal may take place unless there is a substantively fair reason related to the employee’s conduct, capacity or the employer’s operational requirements.
text: When is a dismissal fair?
text: Dismissals for misconduct will only be fair if:
text: When deciding whether a dismissal for incapacity was fair or not, the following must be considered:
text: Dismissals for poor performance will only be fair if the employer:
text: Dismissals for (temporary/permanent) ill health or disability will only be fair if the employer:
text: and for how long he or she is likely to remain ill or disabled (duration of incapacity), as well as the reason for the incapacity will be considered when deciding whether the dismissal is fair or not.
text: The dismissal is fair if you made it clear at the start of their placement that the job was only temporary.
text: Even if you have a fair reason, the dismissal is only fair if you also act reasonably during the dismissal and disciplinary process.
text: Even if your employer does prove that the dismissal is for one of the above fair reasons, it is still up to the Employment Tribunal to decide “in accordance with equity and the substantial merits of the case” whether the dismissal was fair or unfair.
text: The correct test is whether the dismissal was fair on the basis of what your employer knew at the time.
text: In dismissal cases, the burden of proof is on the employer to prove their dismissal was fair.
text: Only then will your claim continue to the next stage of deciding whether the dismissal was fair.
text: At this point, your complaint will be referred to a Workplace Relations Commission (WRC) adjudication officer for a hearing to decide whether the dismissal was fair.
text: To make sure the dismissal is fair when misconduct is not ‘serious’ or ‘gross’:
text: In most cases, dismissal through redundancy will be fair if the reasoning is genuine and a proper procedure has been followed.
text: If the employer can satisfy the ET as to the above points, based on what the employer knew at the time of the dismissal, then it is very likely the dismissal will be found to be fair.
text: In most cases, certain processes or criteria must be followed by the employer to ensure that the dismissal is fair, otherwise it could be challenged at a tribunal.
text: Unfair dismissal in Namibia is defined by the Labour Act, 2007, under which the employer has the burden of the proof that a dismissal was fair.
text: Once the employer has established before a tribunal that the "real reason" for dismissing the employee is one within s. 98(1)(b), i.e. that it was a "valid reason", the Employment Tribunal has to decide whether the dismissal was fair or unfair.
text: The tribunal must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer.
text: Was there good reason to dismiss, i.e. was the dismissal substantively fair?
text: Did the employer follow a fair procedure before deciding on the penalty of dismissal, i.e. was the dismissal procedurally fair?
text: If the employer fail to prove that the dismissal is fair, they have three options to compensate the employees.
text: A dismissal must be substantially and procedurally fair.
text: Fair procedure must be complied with for dismissal to be fair”.
text: In order for dismissal to be fair, both substantive and procedural fairness must be complied with.
text: Where the dismissal is not automatically unfair, the onus is on the Employer to prove that the dismissal was substantively fair according to either the conduct of the Employee, capacity of the Employee or the operational requirements of the Employer’s business.
text: The Acas Code of Practice applies to dismissals for misconduct and will be taken into account by tribunals when deciding whether a dismissal is fair.
text: Furthermore, a dismissal for misconduct will only be fair if, at the time of dismissal:
text: Businesses need to make sure that all dismissals are fair and reasonable under the Fair Work Act.
text: Dismissing someone for one of these reasons doesn’t necessarily mean the dismissal will be legally fair though, as process and whether the decision was reasonable in the circumstances are also relevant.
text: Even if your employer’s reason falls into one of the potentially fair categories, it does not mean your dismissal was fair.
text: In determining whether your dismissal was fair or unfair, the Employment Tribunal will consider: Whether your employer acted reasonably in treating the reason as a sufficient for dismissing you.
text: When may a dismissal be fair?
text: If dismissal would have been fair even if the right procedures had been followed, an employment tribunal can, despite concluding the dismissal procedurally unfair, decide that the individual should receive no compensation.
text: If this has been done, the dismissal is fair, because you have been given a chance to improve your conduct.
text: In this case your employer will want to show that a redundancy situation exists and that therefore the dismissal is fair.
text: Dismissal is fair where there is a valid reason for it, and the sanction of dismissal is proportionate to the employee’s actions.
text: If the reason your employer dismissed you is valid and your employer undertook a fair and reasonable process in managing your dismissal, by (for example) notifying you of the reason for your dismissal and giving you an opportunity to respond to the reason, then this may amount to your dismissal being fair.
text: Just because you have engaged in the above conduct, does not always mean that dismissal was the right answer or that the dismissal was fair.
text: Dismissal of an employee who is not able to perform his/her functions due to ill health or injury will be fair, provided that there is a fair reason for the dismissal (substantive fairness) and fair procedures are followed in implementing the dismissal.
text: The determination of whether a dismissal is fair or unfair is dependent on: the employer's reason for dismissal (and whether or not it was one of the potentially fair reasons listed in s.98 of the Employment Rights Act 1996); whether or not the employer acted reasonably in treating this reason as sufficient to justify dismissing the employee; and whether or not it followed a fair procedure.
text: It was ruled further that "the employer discharges the onus of proving that the dismissal was fair if the arbitrator is satisfied that the employer took relevant considerations into account, and that the employer's explanation for deciding on dismissal, rather than on some lesser penalty, is sound.
text: Either way, the dismissal will need to be fair and reasonable in order to avoid potentially liability for unfair dismissal.
text: Where an unfair dismissals claim is brought, it is presumed that the dismissal has been unfair, leaving the employer with the burden of proving that the dismissal was fair.
text: In Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others, it was held that a dismissal will only be fair if it is procedurally and substantively fair.
text: To be potentially ‘fair’, a dismissal must be for one of five reasons: