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Time to curtail summary dismissal in Australia

journal contribution
posted on 2005-01-01, 00:00 authored by Mirko Bagaric
It is assumed that the right to summarily dismiss an employee for certain forms of misconduct is a fundamental legal right reposed in employers. It is argued that the scope of this right in Australia is too expansive and should be significantly curtailed. In its current form, the right to summarily dismiss employees offends several widely accepted legal and normative maxims and is incompatible with several behavioural norms. While this paper focuses on Australian summary dismissal law, the doctrinal analysis and the reform suggestions advanced in this paper are of relevance to all market economy jurisdictions. Studies of human well-being show that employment, independent of its wealth-creating aspect, is important to well-being. Matters that are central to a person's well-being should not be taken away readily. This moral prescription is given legal recognition by the legal principle of proportionality, which prescribes that there should be proportion between the punishment and harm caused by the wrongdoing. Moreover, it is not the case that a single impertinent act is defining of a person's character or necessarily evinces a predisposition to behave in a like manner in the future.

History

Journal

Labor law journal

Volume

56

Issue

1

Pagination

30 - 46

Publisher

CCH Incorporated: Health & Human Resources

Location

Chicago, Ill.

ISSN

0023-6586

Language

eng

Publication classification

C1 Refereed article in a scholarly journal

Copyright notice

2005, Mirko Bagaric

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