What are the issues in lawful dismissal? Important things we need to know. In this article, we will summarize the principles of lawful dismissal so that we, the workers, can understand each other better. We will not fall victim to being dismissed without understanding or misunderstanding.
Lawful dismissal In summary, there are 5 main points to consider when considering the reasons for dismissal, as follows:
1. The employee’s misconduct that will be the reason for termination must be an event that has occurred in the present.
In the case of employee misconduct that employers consider to be a reason for termination, the labor law has a principle that employers cannot use an incident that has occurred for a long time to terminate employees.
For example, an employee commits a mistake such as neglecting work duties, being late, or others in the past, and such incidents occurred 2-3 years ago. In such cases, the law will consider that the employee has already been forgiven because the employer did not reprimand, reprimand, or issue a warning at that time. Therefore, past incidents cannot be used as a reason for termination.
The reason for the employee’s wrongdoing to terminate the employment must be a fresh incident, such as occurring within 1 month of the current employment year or sooner. Leaving the incident for a long time will not be used to terminate the employment.
Therefore, if an employee is terminated due to an incident that occurred in the past, it may fall under the category of unfair dismissal.
2. Reasons for termination, where the employer intends not to pay compensation.
Reasons for termination which are reasons for not having to pay compensation and the employer intends not to pay compensation, the employer must specify the reasons for termination in the termination letter or notice to the employee.
By law, it is stated that if the employer terminates the employee without specifying the reason for termination in the termination letter, the employer cannot raise it as a defense in a lawsuit for not paying compensation to the employee.
Therefore, the termination is verbal or by a termination letter, but does not specify the reason. That reason is the reason that the law specifies as an exception to not paying compensation.
Therefore, termination without compensation must clearly state the reason in the termination letter.
Read more at: In what cases will employees not receive compensation due to termination?
3. Do not use the reasons for previously punishing employees as a reason for termination.
If the employer sees that the employee has committed a mistake and has already been punished with suspension, and that suspension is considered as a suspension without pay, in this case, it is considered that the employee’s actions have been nullified by the reason for the punishment. Therefore, that reason cannot be used to terminate the employee again because if a person commits a mistake once, they cannot be punished twice.
Talking about suspension, there are 2 cases: suspension during investigation and punishment by suspension.
Suspension from work during an investigation into an employee’s misconduct is provided for in the Labour Protection Act of 1998, Sections 116 and 117, with the following criteria:
In the event that an employer investigates an employee who is accused of committing an offence, the employer is prohibited from ordering the employee to be suspended during such investigation, unless there are work regulations or an agreement on employment conditions that authorize the employer to order the employee to be suspended. In this case, the employer must issue a written suspension order stating the offence and specifying the suspension period not exceeding seven days, and must notify the employee before the suspension.
During the suspension of work under paragraph one, the employer shall pay the employee the rate specified in the work regulations or as agreed upon between the employer and the employee in the agreement on employment conditions. However, such rate shall not be less than fifty percent of the wages received on working days by the employee before being ordered to suspend work.
When the investigation is complete and it appears that the employee is not at fault, the employer shall pay the employee wages equal to the wages for working days from the date the employee was ordered to be suspended. The money paid by the employer under Section 116 shall be calculated as part of the wages under this Section together with interest at fifteen percent per year.
4. The employee’s fault must be serious enough to warrant termination.
The offense must be serious enough to justify termination. In legal terms, the action and punishment must be proportionate. It is not the case that an employee is late twice and that this is not a reason to terminate employment. This type of incident is not considered serious enough to be terminated. Being late twice may require a written warning or verbal warning first.
But if the employee commits a crime, such as committing fraud against the employer, or neglecting his/her duties for more than 3 days, or behaving in a way that causes serious damage to the employer, the employer may terminate the employee. However, the behavior and the reason must be considered in equal proportion.
5. Termination: Only those who are employees must be terminated.
In some cases, the employer tells or informs the employee over the phone that “you don’t have to come to work tomorrow”, which means that the employee has been terminated. However, the employer later says that he didn’t really say it at that time. If the employee doesn’t come to work after that, it is considered a dereliction of duty. Therefore, the employer considers it a termination without compensation.
This is something that employers cannot do because when terminating employment, they must terminate the employment of those who are employees. Those who have already ceased to be employees cannot do so because the employer has already notified them to resign by telephone.
Therefore, the basic principle of termination, the HR department or employer must carefully review whether we are acting in violation of the above principles or not? Because it may risk violating the law that states unfair termination.
More information about labor laws : Department of Labor Protection and Welfare Hotline 1506 press 3 and 1546
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