Read the below case study and address the assignment topic that follows:

Question

Sally is employed on a permanent basis with Company X as a cashier. She has worked there
for 2 years. Company X is a food and beverage company that sells to the local community.
Company X had a clearance sale and there was a special on their 2litre ice cream which was
selling out fast. Sally had intentions of buying a 2litre ice cream but because they were so
busy due to the clearance sale she had decided to put a 2litre ice cream aside for herself in
the lunch room fridge that she was going to buy before they closed the shop. This goes against
Company X policies which all employees are aware of. A manager of Company X visited the
lunch room and found the 2litre ice cream left in the fridge and asked whose it was. When
Sally indicated it is hers, the Manager asked for her purchase slip. Sally indicated she does
not have one as yet as she planned to pay for it before they closed. The manager became
very angry and said Sally wanted to steal the ice cream and is a thief. The manager asked her
to leave her cash register, pack her belongings and leave the premises immediately and not
return back to work again. She subsequently was fired without pay and no disciplinary hearing
was held.
Assignment Topic
In Labour Legislation, fairness in dismissals is determined by procedural and
substantive fairness. Considering the above case scenario, critically argue the
unfairness of Sally’s dismissal by referring to applicable labour legislation.
Provide background information on this topic and conclusion include act

Include references where to information on labour legislation

Answer 1

Background Information: Fairness in Dismissals

In employment law, fairness is a fundamental principle that governs dismissals. The concepts of procedural and substantive fairness play a pivotal role in evaluating whether a termination of employment is justifiable.

Substantive Fairness refers to whether there was a valid reason for the dismissal, typically related to the conduct or performance of the employee. For a dismissal to be substantively fair, an employer must demonstrate that the employee engaged in serious misconduct or that there was a legitimate business reason for the termination.

Procedural Fairness pertains to the process followed by the employer in terminating the employee's contract. This includes ensuring that the employee is given a fair chance to present their side of the story, that they are informed of any allegations against them, and that a proper investigation is conducted before any disciplinary action is taken.

In many jurisdictions, labor legislation explicitly outlines the requirements for fair dismissals, ensuring protective measures for employees. For instance, the Fair Work Act in Australia or the Employment Rights Act in the United Kingdom sets guidelines for handling dismissals.

Unfairness of Sally's Dismissal

1. Lack of Substantive Fairness

In the case of Sally, the substantive fairness of her dismissal can be critically examined based on the following points:

• No Evidence of Intentional Theft: Sally’s action of placing the ice cream aside in the lunchroom fridge does not constitute an act of theft or intentional misconduct. She had aimed to purchase the item before the store closed, demonstrating her intention to pay for it. Thus, the manager's accusation of theft lacks substantiated evidence.

• Proportionate Response: The employer's response to the situation should be proportionate to the alleged misconduct. In cases where employees make honest mistakes or err in judgment, immediate dismissal without prior investigation, and without considering the context, would be deemed excessive.

2. Lack of Procedural Fairness

The procedural elements of Sally's dismissal also indicate a significant lack of fairness:

• No Disciplinary Hearing: According to labor laws, employees should be afforded the opportunity to contest allegations against them in a fair hearing. In this scenario, Sally was not given the chance to explain her side or participate in a disciplinary process. The employer’s rush to judgment and immediate termination violates her right to due process.

• No Documentation or Investigation: Proper labor legislation often requires an investigation of any claims of misconduct. The manager’s unilateral decision to terminate Sally’s employment without documenting the event or conducting an inquiry blatantly disregards these principles.

• Failure to Follow Company Policy: Companies often have internal policies regarding disciplinary actions and employee conduct. By not following their own guidelines and processes for handling employee misconduct, Company X failed to uphold procedural fairness.

Conclusion

Sally's dismissal from Company X exemplifies a clear violation of both procedural and substantive fairness in employment practices. The lack of evidence to substantiate claims of theft, coupled with an absence of a fair and documented disciplinary process, positions her dismissal as inherently unfair.

In light of these considerations, labor legislation, such as the Fair Work Act 2009 (Cth) in Australia or equivalent laws in other jurisdictions, emphasizes the necessity for employers to ensure that dismissals are fair, justifiable, and substantiated by proper process. Failure to adhere to these principles not only jeopardizes employee rights but also exposes the employer to legal repercussions.

References

• Fair Work Act 2009 (Cth). https://www.fairwork.gov.au/
• Employment Rights Act 1996 (UK). https://www.legislation.gov.uk/ukpga/1996/18/contents
• Australian Human Rights Commission. (n.d.). "Termination of Employment." https://www.humanrights.gov.au/
• ACAS Code of Practice on Disciplinary and Grievance Procedures. https://www.acas.org.uk/

These references provide comprehensive insights into labor legislation and employee rights related to dismissals.