The Right to Be Heard Before Dismissals

9 Pages Posted: 20 Aug 2012

See all articles by Shlomit Yanisky-Ravid

Shlomit Yanisky-Ravid

Yale Law School; ONO Academic College; Yale University - Information Society Project; Fordham University, School of Law

Date Written: 2012

Abstract

Dismissals and even a significant deterioration of work conditions are classical examples of events that may give cause for major crises in the employee’s working life. This article analyses the question of whether the employee should be entitled to a hearing prior to dismissal or any infringement of his/her rights.

Let us take the example of Mr. Middelkoop, an assistant store manager. He was fired after 19 years of service. While on duty, Middelkoop purchased 23 packets of cheese at a substantially reduced price, in defiance of company policy. Having violated company policy the decision to fire him was justified. Middlekoop was dismissed without meriting a pre-dismissal hearing.

Is Middelkoop, or any other employee, entitled to a hearing before being dismissed? Should employers be obligated to conduct hearing procedures, as a precondition for the dismissal of an employee? Assuming an affirmative answer, what are the essential components of such a hearing, both procedurally and substantively? What consequences should flow from the employer’s failure to conduct a pre-dismissal hearing? Should these consequences also include sanctions against the employer? The American legal system does not recognize a universal, basic right of all employees to be heard before dismissals. To the extent that American law recognizes such a right it is limited to situations in which employees have a protected interest.

This study sets forth a justification for the establishment of a new right for all employees: the employee’s right to a hearing and the employer’s correlative duty to conduct such ahearing. In other words this study seeks to both institutionalize and inculcate the right to a hearing within the framework of labor law, as a pre-condition for any dismissal or significant deterioration of work conditions.

The study refers to a number of theories that have been advanced in justification of the employee’s entitlement: procedural justice, distributive justice, and economic efficiency, and psychological theory, which views the worker’s need to address and neutralize unresolved crises as the main justification for the employee's right. My conclusion is that a sincere and open conversation with the employee before dismissal may be crucial to the worker’s success in confronting and overcoming the crisis of dismissal and making a fresh start in his working life. In its wake the worker leaves with a greater sense of empowerment, fewer residual feelings of anger and vengeance, and a greater chance of reintegration in the workforce. The study compares the American legal system’s conception and practice of the right to a hearing with the parallel concepts and practices of other legal systems, primarily the European systems. The concept and the rules of the mandatory hearing, recently adopted in a series of judgments handed down by Israeli Courts, are an integral part of labor law rules in a number of legal systems. The position adopted in this article is clear. An analytical comparative assessment of the right to a pre-dismissal hearing indicates that employers as well as employees, and the public in general - all have an interest in the hearing.

Keywords: Dismissals, Employment, Human Rights

Suggested Citation

Yanisky-Ravid, Shlomit, The Right to Be Heard Before Dismissals (2012). Available at SSRN: https://ssrn.com/abstract=2132666 or http://dx.doi.org/10.2139/ssrn.2132666

Shlomit Yanisky-Ravid (Contact Author)

Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

ONO Academic College ( email )

Tzahal Street 104
Kiryat Ono, 55000
Israel

Yale University - Information Society Project ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Fordham University, School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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