When is being fired illegal?

Every now and then, we read about employees being dismissed unfairly. For example, this one and this one.

So what makes a termination just... and unjust? It’s quite simple actually. It’s a justifiable termination if an employee is guilty of serious misconduct i.e. harassment. But it’s not fair if you’ve been terminated for taking too many toilet breaks.

The trouble begins when things starts “falling” within the grey area. For example, the law states that your employer must provide “just cause and excuse” for the dismissal. Question: What is considered just cause and excuse? Unfortunately, there isn’t a clear definition. Could it be taking too many breaks during your work hours? Or spending too much time on social media when you’re supposed to be working instead? Leaving the office Whatsapp group?

Based on the facts of the case, the court can decide whether a dismissal is deemed just. Typically, unjust dismissal can be dismissals that go against the constitution, (i.e. discrimination) or if the dismissal is in a breach of contract (i.e. dismissal without prior notice).

Lawyer Donovan Cheah, partner at Donovan & Ho, states that “the Industrial Court prides itself on being a court of equity and good conscience which means they determine cases on the substantial merits without regard to technicalities and legal form”, he told HG.org. In other words, the court does NOT follow the textbook word for word and will be flexible in their judgement. So really, your fate is left up to what the courts make out of it.

The good news though is that all terminations must always be given due notice (except for misconduct). Which means if your performance or behaviour is continually not up to par, most companies will issue three warning letters before terminating employment. Three strikes and you’re out!

IT’S UNJUST IF...
Say the problem is not you but the company, which could very well be a case of unjust termination if your employer has done any of the following:

• BREACH OF CONTRACT
  Your employer decides the rules but they’re not above it. A company handbook should detail how a termination of contract goes about and if you’re dismissed in breach of the contract, you have a strong case for unfair dismissal. An example? If you’ve been dismissed without reasonable notice despite your handbook stating that the company is required to give you a month’s notice.

• DISCRIMINATION
  The same law that protects you during the hiring process also protects you from being dismissed. If you can’t be denied employment because of your age, race, gender, religion and others, you also can’t be fired for your age, race, gender, religion and others.

• RETALIATION
  Your company cannot fire you because you reported them to the authorities for illegal acts on their part.

• REFUSAL TO COMMIT A CRIME
  If your boss asks you to commit something illegal and you refuse, you cannot be dismissed on those grounds.

WHAT CAN YOU DO?
In the case of unjust termination, a representation must be made to the Director General of Industrial Relations not more than 60 days after the date of dismissal.

The Director General will attempt to settle the matter amicably between you and your company but if a reconciliation is not possible, the matter will be referred to the Minister. if he thinks fit, the Minister may refer the matter to the Industrial Court for a decision.

If things do go to court and your case is won, the court can reward you with the following:

• Reinstatement and backwages (monetary reward to ensure you’re back to the position you would have been in should you not have been dismissed)
• Backwages and compensation in lieu of reinstatement

If you feel like reading more about this, check out the official website of the Industrial Court here.

Photo by Ethan Sykes on Unsplash