Examples of Fair and Unfair Dismissal
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Constructive-Dismissal-COVID-19.Pdf
Below is an Article Written for our Clients by Rodney Employment Law, one of our Business Partners, Regarding Dismissal of Employees during Covid-19 Constructive Dismissal and Covid-19 By Humera Rehman, Associate – Rodney Employment Law “Constructive Dismissal” is a legal concept we often hear about but may not fully understand. The concept of Constructive Dismissal has become particularly apparent during the COVID-19 Pandemic and many employers are still trying to wrap their heads around it. The Courts define a Constructive Dismissal as situations where an employer decides to unilaterally make substantial changes to the essential terms of an employee's contract of employment that the employee does not agree to and decides to leave his or her job. In these situations, the employee has not resigned, but has been dismissed. Once an employee is found to have been constructively dismissed, they are then entitled to the same severance package as they would had they been formally terminated. This is an important concept during the COVID-19 pandemic for a few reasons. Prior to the pandemic, employers could technically impose a temporary layoff on staff under two conditions: 1. The employee was bound to an employment agreement that contained an express term allowing the employer to temporarily lay off the employee; or 2. Layoffs were an expected and recurring practice for the employee, such as with seasonal employment. If these two options did not apply, employees were able to claim that an imposed layoff was a substantial change and a violation of their employment agreement, that they had been constructively dismissed under the common law or under Ontario’s Employment Standards Act, 2000 (“ESA”), and that they were consequently owed severance packages. -
Constructive Dismissal
CONSTRUCTIVE DISMISSAL DISCLAIMER This infosheet contains information of a general nature only and is not a substitute for professional legal advice. You should obtain legal advice from a lawyer about your particular situation before acting on any of the following information. This infosheet is designed for Victorian and national system employees in Tasmania and Queensland only. If you are not a Victorian employee or a Queensland or Tasmanian national system employee, you should obtain specialist legal advice about your case as soon as possible. Constructive dismissal cases are rarely straight-forward. Before filing a claim, you should be well informed about the issues involved. You should read this infosheet along with JobWatch’s “Unfair Dismissal”, “General Protections Dispute” and “Notice of Termination” infosheets which give you information on how to make a claim. You should also obtain legal advice about your specific situation before leaving your job. Who can use this infosheet? This infosheet is designed for Victorian and national system employees in Tasmania and Queensland only. If you are a Victorian employee, you can use this infosheet unless you were employed in a sector that provides essential services of core government functions, including State infrastructure services such as electricity and gas, and your employer is not covered by a nationally registered collective agreement. If you are a Tasmanian employee, you can use this infosheet unless you were a State public sector employee not covered by a nationally registered collective agreement. If you are a Queensland employee, you can use this infosheet unless you were a State public sector or local government employee not covered by a nationally registered collective agreement. -
Sexual Orientation and Religion Or Belief Discrimination in the Workplace
Research Paper Sexual orientation and religion or belief discrimination in the workplace Ref: 01/07 Prepared by Ben Savage, Acas Research and Evaluation Section Funded by the Department of Trade and Industry (DTI) For any further information on this study, or other aspects of the Acas Research and Evaluation programme, please telephone 020 7210 3926 or email [email protected] Acas research publications can be found at http://www.acas.org.uk/index.aspx?articleid=405 ISBN 0-9554830-2-6 ISBN 978-0-9554830-2-8 Sexual orientation and religion or belief discrimination in the workplace Ref: 01/07 2007 Prepared by: Ben Savage (Acas Research and Evaluation Section) Funded by the Department of Trade and Industry (DTI) Acknowledgements The author would like to thank the Department of Trade and Industry for providing the financial support for the project, and Acas staff for their guidance, particularly Fiona Neathey, Gill Dix, Steve Williams, Brenda Roper, Sarah Podro, Stewart Gee, Ron Woods and Keith Mizon. The research would not have been possible with out the contributions of the Acas conciliators who took part in the conciliator focus groups; the Acas Helpline staff who took part in the Helpline survey; the Acas regional staff who provided the ET1 and ET3 forms; John Strand and Chantal Guevara, who helped to produce the Acas ET dataset; Alex Dawe, who programmed the Helpline survey script; the researchers at IES, particularly Ann Denvir, who ran the claimant depth interviews, and the claimants who took part in the IES interviews. Disclaimer This report contains the views of the author and does not represent the views of the Acas Council or DTI. -
Rethinking the Reinstatement Remedy in Unfair Dismissal Law
Elizabeth Shi* and Freeman Zhong** RETHINKING THE REINSTATEMENT REMEDY IN UNFAIR DISMISSAL LAW ABSTRACT Reinstatement is said to be the primary remedy for unfair dismissal under the Fair Work Act 2009 (Cth). The Fair Work Commission is granted a broad discretion to determine whether to award reinstatement, but in the vast majority of cases it does not do so. This article considers the purpose of reinstatement by reference to the context and history of the unfair dismissal provisions, and argues that it is aimed at protecting the individual interests of the employees. This statutory context must be considered when the Fair Work Commission exercises its discretion in granting or refusing reinstatement. It is argued that the Fair Work Commission, in exercising its discretion, has overlooked some of this context and frustrated some of the purposes of the Act. This article makes some suggestions for reform of the law of reinstatement. I INTRODUCTION nder the Fair Work Act 2009 (Cth) (‘Fair Work Act’), reinstatement is to be the ‘primary remedy’ for unfair dismissal,1 with compensation being awarded Uonly if reinstatement is inappropriate.2 However, reinstatement is awarded only rarely in Australia. Of 182 dismissals found to be unfair by the Fair Work Commission (‘FWC’) in 2016–17, only 25 resulted in an award of reinstatement.3 Without further empirical research, it is not possible to conclusively determine exactly why reinstatement is so rarely awarded. In many cases, the jurisdictional and procedural requirements for unfair dismissal claims may hinder the ability of some workers, or some classes of workers, to seek unfair dismissal remedies. -
Mass Layoffs and Collective Redundancies Guide MASS LAYOFFS and COLLECTIVE REDUNDANCIES GUIDE
Mass layoffs and collective redundancies guide MASS LAYOFFS AND COLLECTIVE REDUNDANCIES GUIDE Overview As COVID-19 continues to impact the global economy in unprecedented ways, companies that have had to scale back or shut down operations are bracing for what the next few months will bring, and what this means for their workforces. While the hope is that most workforce measures will be temporary – whether that’s furlough, short-term closures, hiring freezes etc. – given the scale and fluidity of the pandemic, other longer term measures may become necessary over time. Even though these current circumstances are extraordinary, employers remain subject to important legal obligations when considering permanent layoffs, which vary significantly across countries. In this publication, we examine key considerations for employers looking to make permanent reductions in force across the Asia Pacific region. 2 DLAPIPER.COM Generally, is it permissible for companies to conduct mass layoffs and/or collective redundancies in your jurisdiction? Australia It is permissible for companies to conduct mass layoffs and/or collective redundancies in Australia. The Fair Work Act 2009 oversees most Australian workplaces and sets out the minimum redundancy procedure that an employer must follow. However, particular state legislation and industrial instruments (such as awards and enterprise agreements) may apply to entities that are not covered by the federal industrial relations system (most commonly state civil servants) and may stipulate a separate procedure for redundancy. China It can be difficult for an employer to establish sufficient grounds for redundancy in China. Where an employee is made redundant in China, the provisions of the Employment Contract Law (ECL) must be complied with. -
Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism Samuel Estreicher
NORTH CAROLINA LAW REVIEW Volume 92 | Number 2 Article 2 1-1-2014 Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism Samuel Estreicher Jeffrey M. Hirsch Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Samuel Estreicher & Jeffrey M. Hirsch, Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism, 92 N.C. L. Rev. 343 (2014). Available at: http://scholarship.law.unc.edu/nclr/vol92/iss2/2 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. COMPARATIVE WRONGFUL DISMISSAL LAW: REASSESSING AMERICAN EXCEPTIONALISM' SAMUEL ESTREICHER & JEFFREY M. HIRSCH** Commentators have long debated the merits of the American "at- will" rule, which allows employers and employees to end the employment relationship without cause or notice, absent a constitutional,statutory, or public policy exception. One premise for both proponents and opponents of at-will employment is to stress the uniqueness of this default among other developed countries, which generally require "cause" for most dismissals. Although other countries' cause regimes differ significantly from the United States' on paper, this Article addresses whether those differences in normative law also reflect differences in employees' protection against wrongful termination in reality. The existing literature on dismissal law stops at a comparison of countries' normative laws as they appear on the books. In comprehensively examining the dismissal regimes of numerous countries, this Article goes beyond the text of the relevant statutes and cases by using information from foreign employment law practitionersand available data-particularlyclaimants' success * @ 2014 Samuel Estreicher & Jeffrey M. -
Employment Newsletter - Spring 2021
Employment Newsletter - Spring 2021 In this edition of our employment newsletter, the focus is on pay. Our newsletter covers: • Unpaid Salaries and Bonuses • Claims for Underpayment of Wages • National Minimum Wage • Holiday Pay • Equal Pay • Pay Gap Reporting - Gender and Ethnicity • Upcoming Events www.myerson.co.uk 0161 941 4000 Caution urged when reducing pay or bonuses! As businesses face an extended period of economic downturn and persistent uncertainty, many employers have forced reduced working weeks and/or reduced pay on their employees. Employers may also have withdrawn or deferred bonuses and other incentives. Unpaid salary Employers generally do not have a unilateral right to lay staff off, reduce their hours, or reduce their pay just because there is less work. If an employee is ready, willing and able to perform their full duties, the employer normally has an obligation to pay the employee their full contractual salary, unless there is a mutual agreement otherwise. It is a common misunderstanding that the Government’s ongoing furlough scheme afforded employers a right to reduce pay; that is only the case if the employee has agreed to the arrangements. Bonuses In recent times, we have seen many cases of employers withdrawing bonus schemes or deferring payments and awards. A bonus or incentive is sometimes guaranteed by contractual terms, usually subject to achievement of certain performance criteria, such as an individual’s or business’s targets. More commonly, a bonus scheme is expressed as discretionary and will typically provide that there is no enforceable right to a bonus and that payments may be made (or not be made) at the employer’s discretion. -
Unfair Dismissal for Australian Workers: the Hundred-Year Journey
Asian Academy of Management Journal, Vol. 20, No. 1, 147–164, 2015 UNFAIR DISMISSAL FOR AUSTRALIAN WORKERS: THE HUNDRED-YEAR JOURNEY Kim Southey School of Management and Enterprise, Faculty of Business, Education, Law and Arts, University of Southern Queensland, Toowoomba Queensland 4350 Australia E-mail: [email protected] ABSTRACT This paper examines the journey Australia traversed in the development at of the unfair dismissal protections it provides the majority of its workers, since the nation's Federation in 1901. Historically, the country's Constitutional "heads of power" were intended to prohibit the federal government from regulating individual aspects of the employment relationship. Over time, such interpretations of the constitutional powers were challenged by governing parties, resulting in the modern-day, "national" unfair dismissal protections afforded to the majority of workers. The journey Australians traversed during the architecture of their current unfair dismissal legislation provides a lesson on a government's ability to conjure significant influence on individual arrangements between management and workers. Despite Australia's participation in the worldwide, neoliberal push to deregulate labour markets, the protection of workers from unfair dismissal is an explicit matter in the employment relationship attracting increased regulation through industrial legislation. This paper culminates in reporting the consequences facing employers who improperly administer dismissals and how employers can take steps to mitigate such risks. Keywords: unfair dismissal, neoliberal termination of employment, industrial legislation, labour market INTRODUCTION Legal protection against the unjust termination of employees from their jobs has held significant prominence in Australia's industrial landscape, particularly during the past thirty years. In Australia, "unfair dismissal" refers to the termination of an employee's service without the employer exercising due care for the worker's right to procedural justice. -
City HR Association Best Practice Guidance: Bullying and Harassment 1
CITY HR ASSOCIATION Best Practice Guidance: Bullying and Harassment 1 CITY HR ASSOCIATION Best Practice Guidance: Bullying and Harassment Section Contributors 1. Introduction: bullying and harassment in the City Jane Mann 2. Profiles of contributors 3. What is bullying? The difference between bullying and proper Carolyn Matheson, with management assistance from Anne Slade, Sheena Gibson and Roisin Boyer 4. Legal issues: definitions, types of potential claims and exposure, James Warren and Margaret and related issues Davis 5. Managing grievances and claims about bullying and harassment David Murphy and Jane Mann 6. Business and financial incentives for tackling bullying and Andrea Eccles harassment 7. Managing the risk – Part 1: Faith Jenner, Anne Slade and Glynis Hatch Practical guidance on how employers can identify bullying and harassment 8. Managing the risk – Part 2: David Whincup Practical guidance on how employers can tackle bullying and harassment including dealing with bullies in senior management roles: top tips 9. Helping the bullied to help themselves: top tips and the role Carolyn Matheson coaching can play 10. The role of policies/procedures and statements of behaviour: tools David Whincup not hurdles including a model policy and statement of behaviours (employee and management) 11. Resolving workplace disputes: mediation David Whincup 12. Resolving workplace disputes: the role ACAS can play Henicka Uddin 13. The experience of a medical practitioner: the case for early Mark Harvey involvement of specialists 14. The psychotherapist’s view Sarah Briggs, with assistance from Charlie Easmon 15. Frequently Asked Questions Charissa Gooch 16. City specific case studies: successes and failures Anonymous 17. Bibliography Charlie Easmon 18. -
Constructive Dismissal in Canada — a Legal Construct Clarified by the Supreme Court of Canada
CONSTRUCTIVE DISMISSAL IN CANADA — A LEGAL CONSTRUCT CLARIFIED BY THE SUPREME COURT OF CANADA 1. Dynamic is an apt description of labour and employment law in Canada, particularly bearing in mind how these areas have been reshaped by the Courts in the past decade.1 While its bijural system of private law — Anglo-Canadian common law in nine provinces and three territories, and a distinctive civil law tradition in Quebec — might be expected to result in disparate solutions to common human resource issues,2 the Supreme Court of Canada, whose judges represent both traditions,3 has sought to harmonize employment law principles throughout the country.4 Where it felt useful, it is also borrowed from arbitral precedent of the unionized sector of Canada’s labour force, where reliance on precedent from other legal traditions has been more frequent. A review of the Supreme Court’s recent decision in Potter v. 1 The Supreme Court of Canada held, in Reference re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313, that freedom of association, guaranteed pursuant to paragraph 2(d) of the Canadian Charter of Rights and Freedoms, did not establish a Charter-protected right to collective bargaining and perforce any constitutional right to strike. Scarcely 20 years thereafter, in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Colombia, [2007] 2 S.C.R. 391, a different Supreme Court posited that the same paragraph 2(d) protects the right of employees to engage in a “meaningful process” of collective bargaining. Ontario (Attorney General) v. Fraser, [2011] 2 S.C.R. -
Bullying and Harassment of Doctors in the Workplace Report
Health Policy & Economic Research Unit Bullying and harassment of doctors in the workplace Report May 2006 improving health Health Policy & Economic Research Unit Contents List of tables and figures . 2 Executive summary . 3 Introduction. 5 Defining workplace bullying and harassment . 6 Types of bullying and harassment . 7 Incidence of workplace bullying and harassment . 9 Who are the bullies? . 12 Reporting bullying behaviour . 14 Impacts of workplace bullying and harassment . 16 Identifying good practice. 18 Areas for further attention . 20 Suggested ways forward. 21 Useful contacts . 22 References. 24 Bullying and harassment of doctors in the workplace 1 Health Policy & Economic Research Unit List of tables and figures Table 1 Reported experience of bullying, harassment or abuse by NHS medical and dental staff in the previous 12 months, 2005 Table 2 Respondents who have been a victim of bullying/intimidation or discrimination while at medical school or on placement Table 3 Course of action taken by SAS doctors in response to bullying behaviour experienced at work (n=168) Figure 1 Source of bullying behaviour according to SAS doctors, 2005 Figure 2 Whether NHS trust takes effective action if staff are bullied and harassed according to medical and dental staff, 2005 2 Bullying and harassment of doctors in the workplace Health Policy & Economic Research Unit Executive summary • Bullying and harassment in the workplace is not a new problem and has been recognised in all sectors of the workforce. It has been estimated that workplace bullying affects up to 50 per cent of the UK workforce at some time in their working lives and costs employers 80 million lost working days and up to £2 billion in lost revenue each year. -
Constructive Dismissal: Lesson Learnt from Malaysian Industrial Court Cases
International Journal of Academic Research in Business and Social Sciences Vol. 10, No. 11, 2020, E-ISSN: 2222-6990 © 2020 HRMARS Constructive Dismissal: Lesson Learnt from Malaysian Industrial Court Cases Raja Muhamad Yusof, Abdul Rahman Abdul Rahim, Saslina Kamarudin To Link this Article: http://dx.doi.org/10.6007/IJARBSS/v10-i11/8000 DOI:10.6007/IJARBSS/v10-i11/8000 Received: 20 September 2020, Revised: 11 October 2020, Accepted: 01 November 2020 Published Online: 24 November 2020 In-Text Citation: (Yusof, Abdul Rahim, & Kamarudin, 2020) To Cite this Article: Yusof, R. M., Abdul Rahim, A. R., & Kamarudin, S. (2020). Constructive Dismissal: Lesson Learnt from Malaysian Industrial Court Cases. International Journal of Academic Research in Business and Social Sciences. 10(11), 469-485. Copyright: © 2020 The Author(s) Published by Human Resource Management Academic Research Society (www.hrmars.com) This article is published under the Creative Commons Attribution (CC BY 4.0) license. Anyone may reproduce, distribute, translate and create derivative works of this article (for both commercial and non-commercial purposes), subject to full attribution to the original publication and authors. The full terms of this license may be seen at: http://creativecommons.org/licences/by/4.0/legalcode Vol. 10, No. 11, 2020, Pg. 469 - 485 http://hrmars.com/index.php/pages/detail/IJARBSS JOURNAL HOMEPAGE Full Terms & Conditions of access and use can be found at http://hrmars.com/index.php/pages/detail/publication-ethics International Journal of Academic