Procedural Fairness and the Unjustified Dismissal Decision

Abstract

Clause 17(3) of the Employment Contracts Bill (1990) sought to remove consideration of procedural fairness from the unjustified dismissal decision. While this clause failed to survive the second reading, an important hypothetical question remains: what impact would legislation such as this have on the unjustified dismissal decision? By way of addressing this question, the results of a survey of dismissal appeals heard under the Labour Relations Act (1987) are reported. The discussion suggests that hypothetically, removal of procedural fairness would have a major impact on the appeal decision, reducing ,the number of dismissals overturned by 25%. However on a practical level it is suggested that the issues of procedural fairness walild be incorporated into the assessment of substantive justification. Conclusions also consider the no.nsense produced by the clause, in leaving administration of a personal grievance procedure to the judiciary while at the same time restricting use of the principles by which they operate.