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Chapter 8 Outline answers to essay questions
Chapter 8 Outline answers to essay questions
Employment II: termination – wrongful dismissal, unfair dismissal, and redundancy
Answer:
- There is limited protection for workers based on their contracts of employment. In most cases, employers will establish the contract which the worker either accepts or declines - there is an imbalance of power relationship. The contract can state notice periods, reasons for dismissal etc that would disadvantage the worker (under freedom of contract).
- As such, statutory protection was enacted as a bare minimum of governance of the employment relationship. There is a significant difference in the remedies between unfair and wrongful dismissal:
- Unfair dismissal - the three remedies available are reinstatement; re-engagement; and compensation (ERA 1996 s. 112).
- The remedies available for wrongful dismissal are damages (there is no upper limit). They attempt to place the injured party in the position he/she would have been had the contract not been breached. Exceptionally, the courts may award an injunction, particularly where this will prevent a dismissal that attempts to circumvent a statutory right (Irani v South West Hampshire Health Authority).
- Where the contract does not provide notice periods, the ERA 1996 s. 86 provides for a statutory minimum of one weeks’ notice for every year that is worked - to a maximum of 12 weeks’ notice.
- In a fixed term contract with no early termination clause, the damages that may be claimed is the balance of the contract (Addis v Gramophone Co Ltd).
- Payments in lieu of notice are only permitted if expressly permitted in the contract (Morrish v NTL Group).