Australia has long-standing protection for employees in relation to dismissal. Most of that protection was however confined in one of two ways. An employer could not dismiss an employee for a prohibited reason, most typically membership of a union. An individual however could not challenge their own dismissal as being unfair and instead had to rely upon a union challenging the fairness of the dismissal. This remedy however was generally only available in the state tribunals. A similar definition existed at the Commonwealth level, however it was considerably limited by the requirement under the Constitution to establish an inter-state dispute. The ability for an individual to seek relief from unfair dismissal was first established in a statutory scheme in South Australia in 1972, followed thereafter by Western Australia, Queensland, New South Wales and Victoria in the early 1990s.
Protection from unfair dismissal at the Commonwealth level was enhanced in 1984 by the Commonwealth Conciliation and Arbitration Commission with its ruling in the Termination, Change and Redundancy Case, that awards should contain a provision that dismissal "shall not be harsh, unjust or unreasonable" and subsequent awards following it were upheld by the High Court of Australia. The Parliament of Australia later extended the reach of protection from unfair dismissal with the passage of the Industrial Relations Reform Act 1993, which was based on the external affairs power and the ILO Termination of Employment Convention, 1982.
If the Fair Work Commission determines that a dismissal was unfair, the Commission must decide whether to order reinstatement or compensation. The commission is required to first consider whether reinstatement is appropriate and can only order compensation (capped at 6 months pay) if it is satisfied that reinstatement is inappropriate.
Labour law in Canada falls within both federal and provincial jurisdiction, depending on the sector affected. Complaints relating to unjust dismissal (French: congédiement injuste) (where "the employee has been dismissed and considers the dismissal to be unjust," which in certain cases also includes constructive dismissal) can be made under the Canada Labour Code, as well as similar provisions in effect in Quebec and Nova Scotia, all of which were introduced in the late 1970s.
Under the federal Code, non-unionized employees with more than twelve months of continuous employment, other than managers, have the ability to file complaints for unjust dismissal within 90 days of being so dismissed. In making the complaint, the employee has the right to "make a request in writing to the employer to provide a written statement giving the reasons for the dismissal," which must be supplied within 15 days of the request. Complaints are initially investigated by an inspector, who will then work towards a settlement within a reasonable time, failing which the Minister of Labour may refer the matter to an adjudicator in cases other than where "that person has been laid off because of lack of work or because of the discontinuance of a function" or "a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament." Where the dismissal is determined to be unjust, the adjudicator has broad remedial authority, including ordering the payment of compensation and reinstatement to employment.
While many employers have attempted to contract out of these provisions through the payment of a severance package together with a signed release from pursuing any claims under the Code, the Supreme Court of Canada ruled in 2016 that the Code's provisions effectively ousted such common law remedies.
The Labour Code (French: Code du travail) governs the procedure under which dismissal (French: licenciement)[a] may occur, as well as specifying the grounds under which it is valid or not. Dismissal may occur on grounds of personal performance (French: motif personnel) or economic reasons (French: motif économique).
Where the employer believes that there is a valid reason (French: cause réelle et sérieuse) for dismissal on personal grounds, it must give five working days' notice to the employee that a meeting with him must take place, and a decision to dismiss (exercised in writing, sent by registered mail) can only be made not less than two days afterwards.
Where dismissal occurs on economic grounds, the employee has the right to be notified of the employer's obligation during the following 12 months to inform him of any position that becomes available that calls for his qualifications. Failure to give prior notice, as well as failure to advise of any open position, will be causes for unfair dismissal.
Where an employee has at least two years' service, the employer faces several claims:
Where unfair dismissal occurs because of the failure to observe the notification obligations for recall rights, the court may award:
Where an employee has less than two years' service, or where the workforce has fewer than 11 employees, recall rights are not available, as well as the normal remedies for unfair dismissal. The remedy of one month's pay is still available in cases involving failure to follow procedural requirements, and an appropriate amount of compensation may still be ordered in cases where dismissal was improperly executed (French: licenciement abusif).
Where an employee has had at least one year's service, the employer also faces a separate claim for severance pay (French: indemnité de licenciement). The amount is equal to 20% of the base monthly pay times the number of years' service up to 10 years, plus 2/15 of base monthly pay times the number of years' service greater than 10 years.
Unfair dismissal in Namibia is defined by the Labour Act, 2007, under which the employer has the burden of the proof that a dismissal was fair. Explicitly listed as cases or unfair dismissal are those due to discrimination in terms of race, religion, political opinion, marital or socio-economic status, as well as dismissals that arise from trade union activities. Any termination of employment that does not give any valid and fair reason is automatically assumed unfair.
After the release of the Donovan Report in 1968, the British Parliament passed the Industrial Relations Act 1971 which introduced the concept of unfair dismissal into UK law and its enforcement by the National Industrial Relations Court. The Trade Union and Labour Relations Act 1974 abolished the court and replaced it with a network of industrial tribunals (later renamed employment tribunals). The scheme is currently governed by Part X of the Employment Rights Act 1996.
Employees have the right not to be unfairly dismissed (with the exception of a number of exclusions). Following discussions with an employer, an employee can agree not to pursue a claim for unfair dismissal if they reach a settlement agreement (historically a compromise agreement). For a settlement agreement to be binding the employee must have taken advice as to the effect of the agreement from a relevant independent adviser, that is a qualified lawyer; a Trade Union certified and authorised officer, official, employee or member; or a certified advice centre worker.