T29 – Remedies for Unfair Dismissal
and Termination
The Meaning of ‘Dismissal’
• Dismissal is deemed to have occurred in the
following situations:
1. The employee’s contract of employment is
terminated, with or without notice (voluntary
resignation is not dismissal)
2. The employee is employed under a fixed term
contract which is not renewed
3. The employer is in breach of contract, in
circumstances such that the employee is entitled to
regard the contract as repudiated, ‘constructive
dismissal’
4. Failure to permit a female employee to return to
work after confinement
• The main law on unfair dismissal is contained
in the Industrial Relations Act 1967.
• Section 20 of the Act provides that when the
employee considers that he has been
dismissed without just cause or excuse he can
make a representation to Director General of
Industrial Relations.
• This representation must be filed within 60
days of the dismissal.
• Then the matter will be brought to Industrial
Court.
Remedies for Unfair Dismissal
1. Reinstatement
• In reinstatement the employee is treated in all
respects as if he had not been dismissed.
• Any pay, pension and seniority must be restored
to him and he must be given any pay arrears and
any other lost benefits.
• The tribunal may make a recommendation to
reinstatement taking into account the extent to
which the employee contributed to his own
dismissal; and the practicability of reinstatement
(e.g. his fellow employees’ attitude).
2. Re-engagement
• In re-engagement the employee may be
employed in a different job provided it is
suitable.
• The terms and conditions may differ from the
previous ones.
• Re-engagement may be by a new employer,
e.g. a successor to the former employer.
• Damages may be awarded in respect of loss of
benefits arising between the dismissal and re-
engagement.
3. Compensation
• Any compensation, which may be awarded, is
based on the following factors:
– The immediate loss of wages
– Compensation for future loss of wages
– The loss of statutory protection from unfair dismissal
and redundancy as the employee will need to
complete a further two years with another employer
to qualify again for such protection
• Compensation may be reduced if there is
contributory fault on the part of the employee
Reduction in Basic Award
• There are two circumstances under which a
tribunal could reduce the basic award of
compensation:
– Where the employee has unreasonably refused an
offer of reinstatement which would have had the
effect if accepted of reinstating him in all respects as
if he had not been dismissed
– Where the tribunal considers that the employee’s
conduct before the dismissal was such that it would
be just and equitable to reduce the basic award. The
conduct referred to was not the reason for the
dismissal, but came to light afterwards.
Compensatory award
• This is an amount left to a tribunal to determine
based upon what it considers to be just and fair
4. Complaints to Employment Tribunal
• An employee who considers that he has been
unfairly dismissed may complain to an
employment tribunal from the time he receives
notice.
• An appeal lies from an industrial tribunal on a
point of law to the Employment Appeal Tribunal.
5. Damages
To claim damages for wrongful dismissal the
employee must prove that:
• He was engaged on a fixed term - and that he
was dismissed before of the expiry term
• The contract stipulates a period of notice –
and that the dismissal was without such
notice
• Dismissal was without just cause
Assessment of Damages
• Damages should cover such loss as may be
fairly considered to arise naturally from the
breach and also for any loss which was
reasonably foreseeable as likely to arise from
the breach.
• Generally the amount awarded should
compensate for the monetary loss for the
period of notice entitlement.
The amount should cover the following:
Wages
Gratuities
Commissions
Publicity and reputation
Difficulty in obtaining future employment in
cases where narrow specialization has
occurred
Deduction from Damages
• A dismissed employee must mitigate his loss.
• In assessment of damages the court would
take the following into account:
– Income tax liability
– Unemployment benefit received by the employee
– Unfair dismissal compensation received
– Redundancy payment received
6. Quantum meruit
• This is an equitable remedy compelling the
defendant to pay for performance done and
already accepted
7. Injunction
• A court will not normally grant an injunction
which has the effect of requiring specific
performance of a contract for personal services
owing to the voluntary nature of contracts of
employment and the difficulty of the supervision
of the enforcement of this remedy
