Intermediate Approaches to Unfair Dismissal Protection

Abstract

'Employment at Will' systems, in which employers have a right to dismiss employees for any reason or no reason at all, have been (rightly) criticized for allowing the arbitrary imposition of significant harms. 'Just Cause' arrangements, in which employers bear the burden of showing a justified reason for dismissals, in a process which often gives unions significant involvement, have been strongly resisted for causing inflexibility. Israeli labour law, which is relied upon here as an example, suffers from a combination of both extremes. UK law, which could be seen to offer a middle ground, is seen by labour law critics as offering too little protection for workers, and by the Government as offering too much. This article searches for other intermediate solutions. Four are discussed: the flexicurity system which is based on broader security provided by the State, rather than job security; a default (rather than mandatory) job security rule, powered by 'soft law' regulations; a prohibition on 'bad faith' dismissals, requiring the employee to prove a 'bad' cause; and finally, a system based on 'rich' procedural guarantees to ensure just cause. The article focuses on the last one, offering a case-study of a new model recently adopted in some collective agreements in Israel. In this model, a detailed process has to be followed to ensure that dismissals are not arbitrary, but at the end of the day the decision is left solely with the employer. We will discuss the experience with this model so far and whether it offers a balanced solution for employers, workers and society at large. Our discussion is based, among other things, on an empirical analysis of job security perceptions as learned from questionnaires we administered to several groups of Israeli employees.

Keywords: employment at-will, just cause, unfair dismissal, job security