I was let go after my position was declared redundant at work. A few months later, they hired someone else to fill my position. Does this qualify for wrongful dismissal, and can I sue the employer?
For individuals impacted, losing a job by any method, especially redundancy, is an agonising experience. The law has established progressive remedies that may help lessen the associated or relative suffering since it is a difficult procedure with an unpleasant conclusion. According to Section 2 of the Employment Act, redundancy is an employer's exclusive choice; it is the involuntary termination of work that is not the result of an employee's fault. In the context of employment, it only applies to contracts of service.
Section 9 of the Employment Act describes a contract of service as one that is written and agreed upon to have a life of three months or more. Such a period is defined by and attached to specific tasks that cannot be completed in less time in a reasonable person's estimation. Subsection 2 of Section 9 obligates the employer as a critical pillar to a contract of service to evidence it in writing stating the particulars of the employment as provided in Section 10.
For redundancy to begin and take effect, a series of structured interactions between the employer and employee must be followed. Before implementing the redundancy, the employer is required by Section 40 of the Employment Act to provide a month's notice to the local labour officer and the union that the concerned employee belongs to.
Suppose the redundancy only affects a small number of employees and selection is required. In that case, the employer is expected to consider seniority when making decisions in addition to each employee's qualifications, abilities, and dependability. Other information that must be shared includes motivating factors and the extent of the planned redundancy. If an employee is not unionisable or is not a member of any union, they must be personally informed in writing.
According to a collective agreement with a trade union, employers must fairly settle terminal dues, which include paying cash for earnest and pending leave days, providing one month's salary in place of notice to the affected employee, and providing severance pay equal to fifteen days of work for each full year of service.
In addition to any other human rights issue directly arising from your state of employment to unemployment, your ability to sue your employer for wrongful termination depends on the law and procedure, specifically on whether your employer violated any of the provisions outlined in Section 40 of the Employment Act and whether the redundancy was not due to insolvency.
In this regard, everyone has the right to fair labour practices and decent working conditions under Article 41 of the Constitution. This is where the processes and outcomes of redundancy are anchored. Article 47 of the Constitution gives a chance to an affected employee to contextualise redundancy as an administrative process.
In clause (1), the law demands an administrative action to be expeditious, efficient, lawful, reasonable, and procedurally fair.
Since the presumption of good character and exceptional performance underpins all redundancy procedures, it is necessary to consider whether the employee's inherent right to dignity, as guaranteed by Article 28, has been compromised in any way. The different articles that have been discussed here give you the right to sue.
In addition to the issues discussed in this text, you may also cite the fact that your former employer retained the position he had declared redundant and even hired for it, as well as the fact that Article 22 Clause 1 gives you the right to sue if you believe that fundamental freedom or right has been violated, or is threatened. You may also claim that the redundancy process was administratively not handled as per the law or organisational policy, as Article 47 Clause (2) emphasises the need to protect a right or fundamental freedom away from adverse impact. Further, a claim can be made based on the principles of national values, especially Article 10 Clause 2, and 27 Clause 5.
The former categorically demands that all actions be geared to promote and protect human dignity, equity, social justice, inclusiveness, equality, human rights, and non-discrimination and shielding the marginalised, while the latter detests discrimination by anyone against another on the strength of race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language, or birth. Nonetheless, your actions and consequent claims must be supported by evidence, that you may have to substantiate as required by Sections 107 and 109 of the Evidence Act.
