Introduction
This essay explores the concept of unfair dismissal in the context of employment law, focusing on the case of Bernard, a marketing executive from Subang Jaya, who was terminated without warning after raising concerns about unpaid overtime. His employer cited poor performance as the reason for dismissal but failed to provide supporting evidence. The purpose of this essay is to define unfair dismissal, particularly the absence of just cause or excuse, and to offer Bernard advice on potential remedies. By drawing on established legal principles and frameworks, primarily from a UK perspective (as the most widely applicable and academically relevant model), the essay will outline the key criteria for unfair dismissal and suggest actionable steps for redress. This analysis will be grounded in relevant legislation and academic commentary to ensure a sound understanding of the topic.
Understanding Unfair Dismissal: Absence of Just Cause or Excuse
Unfair dismissal, within the context of employment law, refers to the termination of an employee’s contract without a fair reason or adherence to proper procedure. In the UK, the legal basis for unfair dismissal is enshrined in the Employment Rights Act 1996 (ERA), specifically under sections 94-98, which grant employees the right not to be unfairly dismissed (Deakin and Morris, 2021). For a dismissal to be deemed fair, an employer must demonstrate a valid reason, such as misconduct, capability, or redundancy, and must follow a reasonable process in reaching the decision to terminate.
In Bernard’s case, the absence of just cause or excuse is evident. The employer’s claim of poor performance lacks substantiation, as no evidence or prior warnings were provided. According to Collins et al. (2019), a dismissal based on performance issues must be supported by documented proof, such as performance reviews or formal warnings, to justify the decision. Without this, the dismissal may be considered capricious or retaliatory, particularly given Bernard’s complaint about unpaid overtime, which raises the possibility of victimisation. Furthermore, the ERA requires employers to act reasonably, including providing an opportunity for the employee to respond to allegations. The sudden nature of Bernard’s termination suggests a failure to follow due process, strengthening the argument for unfair dismissal.
Possible Remedies for Bernard
If Bernard’s situation is assessed under a legal framework similar to the UK’s, there are several remedies he might pursue. First, he could seek reinstatement or re-engagement, which are remedies aimed at restoring the employment relationship. Reinstatement involves returning to the same position, while re-engagement entails employment in a comparable role (Smith and Wood, 2020). However, these remedies are less commonly awarded, as they depend on the feasibility of continued working relations, which may be strained in Bernard’s case due to the nature of the dismissal.
Alternatively, and more practically, Bernard could claim compensation for unfair dismissal. Under the ERA 1996, compensation typically includes a basic award, calculated based on length of service, age, and weekly pay, and a compensatory award, which accounts for financial loss and distress (Deakin and Morris, 2021). Although Bernard is based in Subang Jaya, Malaysia, and local laws such as the Industrial Relations Act 1967 would apply, the principles of compensation remain broadly similar. Bernard should consult local legal provisions to ascertain specific eligibility criteria, such as minimum service requirements. Additionally, if the dismissal is linked to his complaint about unpaid overtime, he might explore claims of victimisation or breach of wage payment laws, though this would depend on jurisdictional specifics.
Bernard’s first step should be to gather documentation, including correspondence about his overtime concerns and any performance-related feedback (or lack thereof). He could then approach a local labour tribunal or legal advisor to file a claim. Seeking mediation might also be a less adversarial option, potentially resolving the issue without costly litigation. Generally, acting swiftly within statutory time limits is crucial, as delays could jeopardise his claim.
Conclusion
In summary, Bernard’s termination without warning or evidence of poor performance arguably constitutes unfair dismissal due to the absence of just cause and procedural fairness. Drawing on UK employment law principles, such as those in the Employment Rights Act 1996, this essay has highlighted the importance of substantiated reasons and reasonable processes in dismissal cases. For remedies, Bernard may consider reinstatement, re-engagement, or compensation, though local laws in Malaysia will ultimately govern his options. The broader implication of such cases is the need for robust employment protections to prevent arbitrary terminations and ensure employer accountability. Bernard is advised to act promptly, secure legal advice, and pursue appropriate channels to address this grievance, thereby safeguarding his rights as an employee.
References
- Collins, H., Ewing, K.D. and McColgan, A. (2019) Labour Law. 2nd ed. Cambridge University Press.
- Deakin, S. and Morris, G. (2021) Labour Law. 7th ed. Hart Publishing.
- Smith, I. and Wood, J.C. (2020) Employment Law. 15th ed. Oxford University Press.
