Discharge or Dismissal

Overview of Dismissal and Discharge.

Dismissal

• A dismissal is the termination of an individual’s employment by the employer. Employees have a right not to be unfairly dismissed from employment. Before dismissing an employee, employers need to make sure that they have a potentially fair reason. The five potentially fair reasons for dismissal are:
  • capability or qualifications
  • conduct
  • redundancy
  • where continued employment would contravene the law
  • “some other substantial reason”.
• A dismissal can also be constructive, where an employee resigns in response to his or her employer’s breach of contract.

Discharge

The manner in which an employee leaves a job can have legal implications and can determine how a company handles a discharge lawsuit. It is important for a business to know about the different types of employee discharge that exist so it can appropriately prepare for and deal with potential post-employment issues.

Involuntary Discharge

The involuntary discharge of an employee refers to a company’s decision to terminate an employee. Involuntary discharge types include firing and laying off employees.

Voluntary Discharge

A voluntary discharge refers to an employee’s decision to leave her job or quit. Reasons an employee would quit a job include events happening in an employee’s personal life, dissatisfaction with her employer or position, fear of termination, and accepting a job with a different company. Retirement also may be a reason for a voluntary discharge if an employee becomes disabled, has a medical condition that does not allow her to work or a company has reached retirement age.

Mutual Agreement

When an employee loses his job because of a mutual agreement, he and his employer may have agreed upon a termination date in an employment contract. Alternatively, the employee may have faced a forced resignation, which generally refers to an employer’s desire to terminate an employee, but offered the employee the chance to resign instead.

Discharge without Prejudice

Sometimes an employee can regain her position with an employer after a discharge, a situation referred to as a discharge without prejudice. Layoffs generally prompt discharges without prejudice, meaning an employer is willing to rehire an employee if the same or a similar position becomes available later.

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