Tag archives: Dismissal

French employment code reform: Focus on dismissal procedure and indemnity

French President Emmanuel Macron has signed five ordinances making important changes to several aspects of the French employment code. The ordinances, which were published in the French Official Journal on September 23rd, 2017, are aimed in particular at providing employers more flexibility and predictability in managing labour relations.

Several provisions of this ambitious reform (the “Reform”) – numbering 159 pages and providing for 36 measures – are already in force.

Due to the significant amount of amendments to French employment regulations provided by the Reform, we have chosen to focus in our second article on the new regulations regarding changes … Continue Reading

Significant changes to French employment code to enter into force no later than January 1st, 2018

French President Emmanuel Macron has signed five ordinances making important changes to several aspects of the French employment code. The ordinances, which were immediately published in the French Official Journal on September 23rd, 2017, are aimed in particular at providing employers more flexibility and predictability in labour-management relations.

Several provisions of this ambitious reform – numbering 159 pages and providing for 36 measures – are already in force.

The amendments to existing legislation effected by the Ordinances are built around the following principles defined by the French Government:

  • giving precedence to micro-businesses (TPE) and to small and medium-sized companies (PME);
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What is the latest on employees’ rights in the event of redundancy in Germany?

In business, the restructuring of a company (such as by the closure of an individual business unit or a necessary reduction in the number of staff) may result in an employee’s redundancy. However, dismissing an employee by reason of redundancy has strict prerequisites under German law.

The main requirements which must be observed under German law for a dismissal based on redundancy are as follows:

  • In business units with more than ten employees (more than five if hired before 31 December 2003), and if an employee has been at the company for more than six months, a specific justification for
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The (latest) reform of the French employment code is ongoing

As part of candidate Emmanuel Macron’s program during the Presidential elections campaign, a substantial reform of the French employment Code was promised. After his election as President, French commentators anticipated new changes would be implemented quickly, given Emmanuel Macron’s indications that he wished to go ahead as soon as possible, without too much debate before the French Parliament.

This reform is now on track, and will be implemented through a specific procedure:

  • an “enabling” law (loi d’habilitation) shall be voted by Parliament to set a specific framework for the reform;
  • ordinances (ordonnances) will be published after
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Toronto firefighters in hot water over vulgar tweets

Two Toronto firefighters found themselves fighting to get their jobs back after some vulgar tweets on their personal Twitter accounts landed them in hot water. The cases of Matt Bowman and Lawaun Edwards demonstrate the importance of ensuring employees understand the reach of their social media accounts. After a National Post article exposed both firefighters for their tweets, Toronto Fire Services (“TFS”) terminated their employment.  Both filed grievances.

Arbitrator Newman upheld Bowman’s dismissal due to the vulgarity and quantity of Bowman’s tweets, which were found to be objectively sexist and racist, and their resulting implications.  The arbitrator honed in on … Continue Reading

Dismissal for racist slurs in the workplace

An employer who dismisses an employee for making derogatory comments in the workplace must prove both that the employee made the comments, and that the comments are objectively derogatory. In South African Breweries (Pty) Ltd v Heindrich Hansen and others (30 May 2017, CA06/2016) the Labour Appeal Court (LAC) dealt specifically with the use of the iniquitous term ‘k affir’ by a manager against an employee of a third party contractor, a truck driver.  In doing so, the LAC set out what an employer must prove, and reiterated the test on review.

SAB dismissed the manager concerned for … Continue Reading

Do employees who are pregnant or on maternity leave enjoy any special protection in the event of redundancy in Germany?

This post was also contributed by Tony Rau, Trainee, Norton Rose Fulbright LLP (Munich).

German law provides for extensive protection of pregnant employees and employees on leave in connection with pregnancy. Regarding the latter, German law distinguishes between maternity leave (i.e. 6 weeks before until 8 weeks after childbirth – or 6 weeks before until 12 weeks after childbirth in certain cases) and parental leave (i.e. longer periods of leave granted after childbirth in order to care for newborns or children). The relevant rules are primarily aimed at protection against dismissal, but also protect against, for example, certain working conditions … Continue Reading

Do employees who are pregnant or on maternity leave enjoy any special protection in the event of redundancy in France?

As is the case in many other countries (particularly countries in the European Union, which are covered by EU Directive 92/85/CEE dated 19 October 1992), France has implemented a full set of rules with the goal of protecting pregnant employees or employees on maternity leave against illegitimate termination of their employment contract. These protections also apply in the context of redundancies.

The rules run to the benefit of all female employees, whether employed on a full time or part time basis, including both those on an indefinite term and fixed term employment contracts. However, application of the protective provisions to … Continue Reading

Dismissals for established poor performance may – still – be unfair

Just for once, we will talk about French lawyers. We say “for once”, because only a minority of lawyers in France are employees (a very large majority of us are self-employed).

From a French employment law point of view, although the employee in the particular case we will discuss here was a lawyer, that is actually completely irrelevant to the principle at stake, as the decision rendered by the French Supreme Court can be extended to any employee, regardless of their role.

Generally speaking, an employee’s poor performance may result in dismissal, and poor performance is widely used in France … Continue Reading

Human resources managers can be indirectly liable for harassment

Health and safety of employees is highly protected in France. Employers are  responsible for the prevention of any damage to their employees’ health and safety resulting from their work. Amongst other things, French law requires employers to ensure that their employees are protected from any harassment at work.

But another provision of the French Employment Code, which is far less known outside of France, states that employees are also liable to take care, not only of their own health and safety, but also of that of other employees in the company who could be affected by their behaviour or negligence.… Continue Reading

Signed on the Dotted Line in Time? The Court of Appeal addresses the timing of an employee’s execution of her employment contract.

Employers have long been advised to ensure that a new employee agrees to and executes his or her written employment contract before starting work. Otherwise, there is a risk that the employment contract will be held to be unenforceable on the basis that there was no “consideration” provided to the employee in exchange for entering into it. Usually the “consideration” (meaning something of value exchanged between the parties) to the employee is the employment itself. Courts have held, however, if an employee is already employed, the continued employment itself will not be sufficient consideration. Something more must be provided.

The … Continue Reading

What is the latest on employees’ rights in the event of redundancy in France?

Dismissing an employee due to economic difficulties is extremely delicate in France. A law dated 8th August 2016 has specified the definition of the economic grounds for dismissals, providing that economic difficulties are, in particular, characterized by a significant evolution of an indicator such as a significant drop of turnover, a significant drop in purchase orders, operating losses, worsening of cash flow or gross operating profit or any other elements which can evidence such economic difficulties.

Case law imposes a very strong obligation on employers before envisaging any redundancy and the main applicable principles regarding employees’ individual rights have not … Continue Reading

Ontario Human Rights Tribunal: Subjective belief can trump facts

Chodha v. 1352866, 2016 HRTO 1241 demonstrates that human rights tribunals will consider an employer’s bona fide subjective belief in deciding whether the employer has provided a reasonable explanation for apparently discriminatory conduct. Indeed, the employer’s belief may take precedence over factual circumstances, as they did in this case.

The case involved the termination of an employee for allegedly falsifying medical evidence in support of a claim for workers’ compensation.  The applicant (“Chodha”) worked as an assembler. He injured his back while at work and consequently visited his physician. The employer terminated Chodha’s employment because his doctor’s note was … Continue Reading

When an employer hides another employer

Dual employment is a sensitive subject in French employment law as it enables employees to raise claims against a different employer from that with which the employment contract was signed.

The matrix-type organisation of groups of companies, which has become the rule, can have adverse consequences if employees have the feeling that they are employed by the group as a whole and not by the company to which they are bound under their employment contract).

As long as the economic situation of the employer is flourishing, the risks are remote. However, issues generally arise when the French member company of … Continue Reading

Update regarding protection against religion-based discrimination in France

In France, the issue of religious behavior in the workplace is extremely sensitive.

The principle under French employment law is that while public sector employers are required to enforce a policy of strict neutrality, in private sector companies, a balance must be maintained between the principle of secularism and the prohibition of discrimination based on religious beliefs.

On this basis, French employers can limit certain religious’ behavior in the workplace if :

  • the prohibition is justified by the nature of the tasks to be performed by the employees,
  • the prohibition responds to a determining and essential professional requirement, and
  • the
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Key employment law developments expected in 2017

A significant amount of new employment legislation is expected or is already in place for 2017. Key changes will be in the hiring of temporary workers through an agency (referred to as “personnel leasing” in Germany), employee protection and equal treatment.

Reform of laws regarding personnel leasing

One of the main developments in 2017 will be the long expected reform of the German Act on Temporary Employment (Arbeitnehmerüberlassungsgesetz – AÜG), as well as other related laws, with effect from 01 April 2017. Aiming to reinforce the rights of temporary workers during personnel leasing and in particular to prevent … Continue Reading

Italy’s Supreme Court confirms that dismissals for redundancy to increase profits are legal

In a decision dated December 7, 2016, Italy’s Supreme Court – the Corte di Cassazione – confirmed that the dismissal of an individual employee for redundancy can be legally grounded solely on business-related reasons, such as improving the company’s competitiveness, reducing costs, or increasing profits. The decision was based on the constitutional principle of “freedom of private enterprise.”… Continue Reading

Recent changes to the law on the dismissal of severely disabled employees

In Germany, as of 1 January 2017, various amendments to the law on severely disabled persons came into force. Of particular importance is a new regulation relating to the dismissal of severely disabled employees.

Until the recent changes came into force, before the dismissal of a severely disabled employee the representative body for severely disabled employees had to be heard in accordance with the relevant provisions of the German Social Code Book IX (SGB IX). However, this was not a prerequisite for the effectiveness of the dismissal and therefore rather irrelevant.

Since the beginning of this year, however, the hearing … Continue Reading

Constitutional Court takes a vehement stance against racism in the workplace

This article was written by Erwyn Durman, a Candidate Attorney at Norton Rose Fulbright South Africa

Employers now have the authority to sanction serious cases of racism with a dismissal. The Constitutional Court by overturning contrary judgments of the Labour Court and the Labour Appeal Court: ruled categorically that a dismissal is an appropriate remedy for “the worst kind of contempt, racism and insubordination”.

In South African Revenue Service (the employer) and Commissioner for Conciliation, Mediation and Arbitration (CCMA) and others [2016] ZACC 38 the Constitutional Court addressed racism as embodied by the word “kaffir”, which … Continue Reading

The importance of mobility clauses for Quebec employers

In order to meet their organizational needs, employers may need to relocate their employees’ workplace. However, relocating employees can be risky business for employers.

The place of work is an important part of an employee’s working conditions. When employers make substantial changes to their employees’ working conditions, said employees can potentially claim that their original employment contract has been terminated. This is referred to as a “constructive dismissal”.

When it comes to relocating an employee’s workplace, a substantial change is defined by the relocation involving a relatively large distance, and impacting the employee’s daily life. Generally, the courts will evaluate … Continue Reading

An employer’s financial circumstances do not affect the reasonable notice period

Should an employer’s financial circumstances be relevant when considering the period of reasonable notice to which a wrongfully dismissed employee is entitled? This question was raised on appeal in Michela v St. Thomas of Villanova Catholic School, 2015 ONCA 801.

As calculating the appropriate notice period is fact-specific, the argument that an employer’s financial circumstances should be considered in the notice calculation is an intriguing one. Previously, the recognized relevant factors in determining notice periods focused on the circumstances of the employee rather than the employer. These include the character of the employment, length of service, age, experience, … Continue Reading

Wilson v. AECL – Generosity is Not Enough: Federally Regulated Employers Must Have Cause to Dismiss Non-Unionized Employees

At common law, a non-unionized employee can be dismissed without reasons if he or she is given reasonable notice or pay in lieu.  Today, a majority of the Supreme Court of Canada ruled that this common law rule does not apply to federally regulated employers.  The Court ruled that federally regulated employers must always provide reasons for the termination of their employees. Furthermore, if the reasons for dismissal do not meet the standard for “just cause” as that term is understood in the collective bargaining context, an employee who has twelve months of continuous service may complain under section 240 … Continue Reading

“What are the latest developments on whistleblowing in the workplace in Germany?”

Apart from the well-known Wiki-leaks, recent prominent cases of whistleblowing such as Lux-leaks, the Panama Papers or the case of the German geriatric nurse Brigitte Heinisch, who was dismissed after revealing the ill-treatment of elderly people in a Berlin retirement home, continue to highlight the continued relevance of the topic “whistleblowing”. While this has resulted in an increased public awareness and consequent expectation of global corporate accountability, the subject remains a complex matter of opposing interests: on the one hand, the public interest in ensuring that companies, authorities and organisations comply with the law, and on the other hand, the … Continue Reading

Ontario Divisional Court Clarifies the Meaning of a Probationary Period

What is the meaning of a “probationary” period for an employee? This is the question the Ontario Divisional Court wrestled with in the recent case of Nagribianko v. Select Wine Merchants. The facts of the case are fairly straightforward. Upon agreeing to work for the defendant, the plaintiff agreed to an employment contract that expressly provided for a 6-month probationary period. The plaintiff had been working for the defendant for just under 6 months when his employment was “after careful consideration” terminated on the grounds that the plaintiff was deemed “unsuitable for regular employment”. The plaintiff subsequently sued the … Continue Reading

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