Unjust Dismissal under Palestinian Labour Law
Despite the fact that the Palestinian legislator has addressed the provisions related to unjust dismissal, particularly within Articles (46, 47, and 48), it did not provide a clear and explicit definition of it. Instead, Article 46(3) states that:
“Termination of an employment contract without justified reasons shall be considered arbitrary (unjust) dismissal.”
Meanwhile, Article (39) lists three cases that are not considered legitimate grounds for termination, and these are mentioned exhaustively. It states that the following, in particular, shall not be considered valid reasons for termination by the employer:
- Union membership or participation in trade union activities outside working hours, or during working hours with the employer’s consent.
- The worker’s request to exercise representative functions on behalf of workers, or their current or previous exercise of such functions.
- The worker filing a lawsuit or participating in proceedings against the employer alleging violation of the law, as well as submitting complaints to competent administrative authorities.
Accordingly, any dismissal proven to be linked to any of the above-mentioned grounds is clearly considered an arbitrary dismissal by explicit legal reference. The Palestinian legislator assumes that there must be legal consistency between termination of the employment relationship and the relevant provisions of labour law.
Therefore, any termination of the employment relationship that does not comply with these provisions may be considered an abuse of the employer’s right to terminate, and thus an arbitrary dismissal. In such cases, the employee is entitled to compensation for unjust dismissal, which is equivalent to two months’ wage for each year of service in the establishment, provided that it does not exceed the wage of two years.
Employee with less than one year of service
The employee’s entitlement to compensation for unjust dismissal is not conditional upon completing one full year of service. Even if the employee is dismissed before completing one year, they are still entitled to compensation. Otherwise, the purpose of the law—namely protecting employees from arbitrary dismissal—would be undermined.
The employer’s right to terminate the employment contract without justification is limited to the probation period, which is three months. Any termination after this period, without valid justification, is considered arbitrary dismissal.
Furthermore, the wording of the law stating “two months’ wage for each year of service” should be understood as a method of calculating compensation, not as a condition requiring completion of one year of service to qualify for compensation.
Burden of proof
The Palestinian Court of Cassation has ruled that the burden of proving arbitrary dismissal lies with the employee, based on general rules of evidence. The principle is that the employer’s exercise of rights is presumed lawful unless proven otherwise.
However, this judicial approach has been subject to criticism. Given that the employee is the weaker party in the employment relationship, labour law is designed to protect them. Accordingly, it is argued that the employee should only need to prove the existence of the employment relationship, while the employer must prove the legitimacy of the dismissal and provide valid reasons for termination.
Since dismissal is only lawful when justified, the employer bears the responsibility of presenting such justification before the court. The employee, in turn, may rebut these reasons by proving their invalidity, for example by demonstrating proper performance of duties and compliance with contractual obligations.