In labour law, unfair dismissal is an act of employment termination made without good reason or contrary to the country's specific legislation.
Situation per country
Australia
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.
In current Australian law, unfair dismissal occurs where the Fair Work Commission, acting under section 385 of the Fair Work Act 2009, determines that:
a person has been dismissed; the dismissal was harsh, unjust or unreasonable; it was not consistent with the Small Business Fair Dismissal Code; and it was not a case of genuine redundancy.
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.
Canada
Labour law in Canada falls within both federal and provincial jurisdiction, depending on the sector affected. Complaints relating to unjust dismissal () (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.
France
Unfair dismissal became part of French labour law in 1973, but certain other protections had been previously instituted as far back as 1892.
The Labour Code () governs the procedure under which dismissal () may occur, as well as specifying the grounds under which it is valid or not. Dismissal may occur on grounds of personal performance () or economic reasons ().