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Date Posted: 18:50:35 09/17/06 Sun
Author: Employment & Labour Law (Employment & Labour Law)
Subject: Reasons For Wrongful Dismissal * So you've just been fired.
In reply to: A Gross Injustice Had Been Done Upon You! 's message, "Giant Corporation Trample & Bully the Weak & the Defenceless!" on 19:02:11 09/16/06 Sat

Reasons For Wrongful Dismissal * So you've just been fired.
You've probably already begun searching through job listings, revamping your resume and confirming your references. But you also have some doubts about the reasons behind your dismissal. Was it justified or unjustified, legal or illegal? Where do you go from here?

Most states operate under the Employment at Will Doctrine, which assumes that both you and your employer contracted with each other on a voluntary basis. Therefore, in the same way that you can quit your job whenever you want to, your boss can also fire you whenever he wishes.

Of course, that doesn't mean there's no such thing as being wrongfully dismissed. Many states require that your boss have "good" or "just" cause for letting you go, and there is a set of laws (described in detail below) that make clear which reasons for termination are unjust.

The Wrong Reasons * Breach of contract
If you work under an explicit contract and you fulfill your half of the bargain, it's considered unjust for your boss to terminate you. In some cases, even an implied contract counts, which highlights the importance of keeping a paper trail. Dig through your records to find documents that were drawn up when you started working, like a job offer letter or a detailed description of your duties and responsibilities. These will help prove your point.
Constructive discharge
Did your boss create new conditions that you find impossible to work under? Do you believe that any other employee in your position would agree? Though it's usually hard to prove, if your boss tries to force you to quit by creating unreasonably difficult work conditions, it's called constructive discharge. Some examples of constructive discharge include:


Being demoted or transferred for no valid reason
Receiving unfair or unsatisfactory job evaluations
Having your salary and/or benefits reduced
Being encouraged to resign
Having your job responsibilities changed
What if your boss just doesn't like your face or wants to play doctor?
Defamation of character
Did your boss lie about something you did to justify firing you? Did he tell others that you were lazy and not performing while the evidence indicates otherwise? Did he spread unflattering gossip about your personal life? Did he publicly accuse you of doing something illegal, like stealing?

If you've experienced any of the above, you may have a solid case for getting your job back. This type of behavior is known as defamation of character, and it's illegal.

Discrimination
It's illegal for your boss to dismiss you because of your age, race, gender, disability, or religion. But if you are fired for a reason that is not protected under the law -- for example, because of your haircut, personal hygiene, choice of clothing, or place of residence -- it is not considered discrimination.

Sexual harassment
It's also illegal for your employer to make sexual advances if you make it clear that they're unwanted. If you are fired because you do not yield to sexual advances from your employer, you probably have a strong case for getting your job back, or at least being compensated for a wrongful dismissal.

The classic form of sexual harassment -- the type that's usually portrayed in movies and on TV -- is called quid pro quo sexual harassment. In these situations, your boss threatens to fire you unless you give in to his advances.

But simply being hit on regularly after you've made it clear that you're not interested can also be considered sexual harassment. And don't assume that only women find themselves in these situations. Men encounter sexual harassment in the workplace, too -- from both women and other men.

Whistleblowing
Whistleblowing is when an employee reports an illegal activity his employer is involved in. Remember Russell Crowe's character in the movie The Insider ? He worked for a tobacco company and "blew the whistle" on an illegal scheme they were running to make cigarettes more addictive. Even reporting your boss for "cooking the books" or misleading investors can qualify as whistleblowing.

Legally, your boss cannot fire you for being a whistleblower, so if you feel like your dismissal is part of some sort of retaliation, you may have a case.


what to do

If you feel that you've been wrongfully terminated based on what the law says, the best thing to do is talk to a lawyer. Taking legal action is no easy ordeal for anyone, though, so you should first figure out if it's worth your while to pursue the matter further.
The stronger your case, the more likely you are to make it through the process quickly and cleanly. And sometimes, the threat of a lawsuit may be enough to get you your job back or to receive financial compensation, depending on your demands. But in other cases, you may end up in a drawn-out court battle, so if your case is difficult to prove, you may want to reconsider before taking legal recourse.

More options and preventive measures...
Another option is to try to resolve the matter through your company's human resources (HR) department. In some cases, HR can be invaluable in mediating conflicts, but in other cases, they may reflexively side with the higher-ups.

If you or another co-worker have a friend in HR, try talking to him "off-the-record" first in order to get an opinion on how you should proceed. Or if you know someone who has tried to mediate an office conflict through HR before, ask him if they were helpful.

Preemptive Measures * Whether or not you've been wrongfully dismissed, it never hurts to take some preemptive measures to avoid being wrongfully dismissed in the future -- and to ensure that you're prepared if you ever are.

Make sure to keep a paper trail detailing your duties and responsibilities when you're hired or get a promotion
Whenever possible, keep written records of contracts and agreements
Make sure your boss doesn't flake out when it comes time for performance evaluations -- if you're fulfilling your responsibilities, you want to ensure it's recorded
Save any e-mails you receive from colleagues praising your performance
Don't get caught up in office gossip, as your comments could be used against you
Save important voice mail messages and e-mails
Befriend the colleagues you work with closely to ensure that they don't gang up on you; you can even befriend someone in HR so you can get answers to "off-the-record" questions
Report discrimination or sexual harassment as soon as it happens
Think long and hard before you decide to become a whistleblower, and make sure to find out beforehand what type of protection you would have
Make sure you're clear about your company's policy regarding grounds for dismissal; if you have questions about it, ask someone in HR.
Moving On *

So what if, after reading through this, you decide that your dismissal was likely legit? In many situations, these things really do happen for the best. Accept that your time at your former company is over, look forward to moving on and don't carry your past with you. However, if you believe you were truly wrongfully dismissed, you have to decide whether or not you're willing to go through the long, grueling process of a court battle. If you are, then stick to your guns, but sometimes, it's just easier to find another job.
Resources:
www.fairmeasures.com
www.hrgopher.com
http://jobsearchtech.about.com
www.workplacefairness.org
www.lawyers.com

Article Suggested By:David Burke, Waterford, MI Website - http://wrongfuldismissal.cjb.net/

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