The elements of substantive fairness in the context of dismissal, as derived from the provided information, can be summarized as follows:
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Seriousness of the Contravention: The seriousness of the employee's violation of the relevant Act or workplace rules should be assessed. More serious violations may warrant harsher disciplinary actions.
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Attempts to Comply: An evaluation of the attempts made by the employer to comply with the relevant Act and to follow proper procedures prior to the dismissal.
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Response to Employer Conduct: Consideration of whether the employee's actions, such as participating in a strike, were in response to unjustified conduct by the employer.
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Clear Communication: The employer must provide an unambiguous ultimatum that clearly states the expectations of the employees and the consequences of non-compliance.
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Sufficient Reflection Time: Employees should be given adequate time to consider the ultimatum and respond, whether by compliance or rejection.
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Awareness of Rules: Determining if the employee was aware or could reasonably have been expected to be aware of the workplace rules or standards they allegedly contravened.
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Validity and Reasonableness of Rules: The rules or standards in question need to be valid and reasonable.
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Consistency in Application: It must be determined whether the employer has consistently applied the rules or standards to all employees.
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Appropriateness of Sanction: Assessing whether dismissal or other disciplinary measures were appropriate given the nature of the contravention.
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Provision of Support and Guidance: Employers are expected to give employees guidance and support to improve performance, especially during the probationary period.
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Opportunity to Respond: Employees should be given the opportunity to explain themselves and present their case before dismissal, and they may be represented by a trade union representative or a fellow employee.
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Investigation of Performance Issues: An investigation into the reasons for unsatisfactory performance should occur, and alternatives to dismissal should be considered.
In summary, these elements ensure that dismissals are conducted with fairness and due process, considering both the actions of the employee and the conduct of the employer.