Answer ... Yes. Dismissals that cannot be justified under any one of the grounds below are considered unlawful per se:
- unsatisfactory performance (excluding temporary incapacitation due to illness, injury or childbirth);
- force majeure, act of war, civil commotion or act of God;
- termination at the end of a fixed period;
- conduct which renders the employee subject to summary dismissal; or
- conduct which makes it clear that the relationship between employer and employee cannot reasonably be expected to continue, commission of a serious disciplinary or criminal offence, indecent behaviour or repeated violation or ignorance of employment rules.
Answer ... Yes. Written notice of termination must be given to the employee outlining the reasons for the dismissal and the effective date of termination.
According to the Termination of Employment Law, the statutory minimum notice period varies from one to eight weeks, according to the employee’s period of continuous employment.
Dismissal without notice or payment in lieu of notice can take place only in the following circumstances:
- The employee’s conduct indicates that the relationship between the employer and employee cannot reasonably be expected to continue under the circumstances;
- The employee has committed a serious disciplinary or criminal offence;
- The employee has behaved indecently; or
- The employee has repeatedly violated or ignored employment rules.
Answer ... Employees are generally protected from dismissal for any reason that is not a legally justified ground for dismissal. Furthermore, it is a criminal offence to dismiss a pregnant employee from the time of presentation with a doctor’s certificate of pregnancy up to five months after the end of maternity leave.
It is also illegal to dismiss an employee on leave due to an incapacity, unless certain conditions are satisfied.
Finally, an employer cannot dismiss an employee based on:
- religious beliefs;
- nationality; or
- social origin.
An unfairly dismissed employee can bring a claim for damages for unlawful or wrongful dismissal at the Industrial Disputes Tribunal, which has exclusive jurisdiction to determine matters arising from the contract of employment and termination.
Alternatively, an employee has the right to file a claim for breach of contract with the district courts if the claim exceeds the equivalent amount of two years’ salary (which is the maximum amount of compensation that can be ordered by the Industrial Disputes Tribunal).
In addition, an illegally dismissed employee is entitled to payment in lieu of notice, which is calculated based on the scale mentioned above.
Depending on the circumstances, an employee may also claim general damages for breach of contract or loss of career prospects and any special damages suffered as a result of the termination.
In cases of unlawful termination of employment, and provided that the employer’s total workforce exceeds 19 persons, the courts can order the employer to re-employ the employee. However, this discretionary power is rarely exercised.
Answer ... Statutory compensation for unlawful dismissal payable by the employer depends on the period of continuous employment and is calculated in the same way as compensation for redundancy. This compensation is calculated in accordance with Table 4 of the Termination of Employment Law, which provides as follows:
- two weeks’ wages for each year of service up to four years;
- two-and-a-half weeks’ wages for each year of service from five to 10 years;
- three weeks’ wages for each year of service from 11 to 15 years;
- three-and-a-half weeks’ wages for each year of service from 16 to 20 years; and
- four weeks’ wages for each year of service beyond 20 years.
In cases of lawful termination of employment due to redundancy, an employee is not entitled to compensation from the employer. In such case the employee is entitled to compensation from the National Redundancy Fund, to which all employers pay monthly contributions. The maximum amount of compensation that the Industrial Disputes Tribunal is entitled to award is two years of the claimant’s salary. Depending on the circumstances of the case, the tribunal may award any amount between the minimum (ie, which is calculated in the same way as compensation for redundancy) and the maximum (two years’ salary). Before deciding, the tribunal will consider the employee’s age, family situation, career prospects and all circumstances of termination. If the maximum amount is awarded, any payment in excess of one year’s wages is payable to the employee by the National Redundancy Fund, not by the employer.