Posted on: Sep 28, 2012

Question: My client B has an employee who B has come to thoroughly dislike. The employee is a black hole of self-pity and misery. B dreads seeing the employee in the morning and has reached the stage where everything the employee does drives B to distraction. The employee’s employment agreement provides for termination of employment on four weeks’ notice. Can B legally dismiss the employee with four weeks’ notice? If not, is there any other action B can take to remedy the matter?

Answer: In this situation, there is very little that B can do lawfully to get rid of the employee.

Dismissal on notice

B cannot legally dismiss the employee with four weeks’ notice despite the provision to that effect in the employee’s employment agreement. B would have to have a good substantive reason to dismiss the employee (and probably has not got one) and would have to follow a fair procedure. If B dismisses this employee with four weeks’ notice without a good substantive reason and without following a fair procedure, B will undoubtedly be faced with a successful personal grievance claim for unjustified dismissal under the Employment Relations Act 2000. Section 103A of that Act sets out the test for the justifiability of a dismissal.

Is there any other action B can take to ameliorate the matter?

It appears that this employee has not failed to perform in any way so B cannot dismiss the employee for poor performance. It is also unlikely that B could claim dismissal of this employee was justifiable on the ground that B and the employee are incompatible. Dismissal for incompatibility will only be justified when the fault is clearly on the side of the employee and the employer has taken all reasonable steps to resolve the problem.

On occasion employers have been held entitled to dismiss employees for incompatibility. However, the Employment Court has made it clear that dismissal of an employee for incompatibility will seldom be justifiable.


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