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Employment at Will versus Just Cause Dismissal: Applying the Due Process Model of Procedural Justice

  • Author(s): Harcourt, Mark
  • Lam, Helen
  • Hannay, Maureen
  • et al.
Abstract

This paper critically examines the procedural justice characteristics of dismissal under the American employment-at-will (EAW) system and the New Zealand just-cause system, with regard to poor performance, misconduct, and redundancy (downsizing) situations, using a due process framework of three dimensions:adequate notice, fair hearing, and judgement based on evidence.  Without any explicit proactive procedural protocol required for dismissals,EAW was found to offer limited protection to employees. Contrarily, employeesinNew Zealand have better protections in statute and common law, requiring employers to provide substantive justifications for dismissal and to follow procedures similar to due process.  If employees are to be treated fairly and respectfully, changes to the EAW are needed, and the New Zealand system, despite some limitations identified, may be a good reference model.

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