Tag archives: unfair dismissal

Genuine Redundancy and Redeployment – Job Swapping Reasonable in All the Circumstances?

In the recent case of Skinner et al v Asciano Services Pty Ltd T/A Pacific National Bulk [2017] FWCFB 574 the Full Bench found that an employer breached its obligation to explore redeployment options under s.389(2) of the Fair Work Act 2009 after making 7 of its employees redundant without properly considering job swaps and … Continue reading

Failure to Mitigate in Ontario

Aylsworth v Law Office of Harvey Storm, 2016 ONSC 3938 is an interesting case that further defines the boundaries of what type of job employees can reasonably reject without failing in their duty to mitigate their wrongful dismissal damages. Lynne Aylsworth had worked at  the Law Office of Harvey Storm for 15 years as a … Continue reading

The latest from the Fair Work Commission on drug and alcohol policy breaches

Last month, the Fair Work Commission upheld a decision to dismiss an employee for breaching its zero tolerance policy on illicit drugs, confirming the importance of having a clear drug and alcohol policy that is effectively communicated and consistently applied. The employer, Coles Group Supply Chain Pty Ltd (Coles), summarily dismissed Shane Clayton who tested … Continue reading

What rights and protections are there for workers on zero hours contracts in Germany?

Unlike in the U.K. and other EU member states, zero hours contracts are not (yet) common practice in Germany. To date, other arrangements aimed at achieving “flexible working” such as fixed-term or part-time contracts, secondment of personnel and – more recently – contracts to provide services have been more widespread. However, as German case law … Continue reading

Quebec Labour Tribunal rules on decision to terminate a high paid employee

The Tribunal administratif du travail recently released Major c. Nova DM Média Canada inc., 2016 QCTAT 4423, which clarified an employer’s burden of proof to demonstrate that an employee was laid off as part of an administrative reorganization rather than dismissed not for good and sufficient cause. In this decision, administrative judge François Caron relied … 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 … Continue reading

Can internal investigations commissioned from third party investigators be kept confidential?

The recent decision of the Fair Work Commission in Kirkman v DP World Melbourne Limited[1]  illustrates the benefits to employers of taking care when commissioning investigations into alleged misconduct in the workplace.  If the commissioning of the report is handled correctly, and confidentiality of the report is maintained at all times, it may be possible … Continue reading

FWC decision highlights potential gap in unfair dismissal protections for labour hire employees

A recent decision of the Fair Work Commission (FWC) means that labour hire employees working on projects may find it more difficult to avail themselves of the unfair dismissal protections in the Fair Work Act 2009 (Cth) (Fair Work Act). In this case, the labour hire employee’s contract of employment made specific reference to the … Continue reading

Fixed costs for fixed-term contracts

What happens when an employer terminates an employee on a fixed-term contract? The Ontario Court of Appeal in Howard v Benson Group Inc. recently weighed in on the issue. The Court held that the employee was entitled to an amount equal to his salary and benefits for the unexpired term of the employment contract rather … Continue reading

Record Award: Ontario Human Rights Tribunal Awards $150,000 in Compensation

In an unprecedented decision from last May (and worth discussing again), the Ontario Human Rights Tribunal (the Tribunal) awarded a migrant worker $150,000 in compensation for injury to her dignity, feelings, and self-respect under the Ontario Human Rights Code (the Code) as a result of sexual harassment and reprisal at the hands of her employer’s … Continue reading

Innocent Until Proven Guilty in the workplace? Criminal Charges May Not Justify Termination for Cause

While courts have often held there may be just cause for termination based on certain off duty conduct, a recent case has gone the other way. Recently, in Merritt v. Tigercat Industries, 2016 ONSC 1214 (CanLII), the Ontario Superior Court of Justice reinforced the notion that an employer cannot rely on the mere existence of … Continue reading

Being “exclusive”: The Ontario Court of Appeal assesses dependent contractors

One of the key distinguishing feature between an independent and dependent contractor, particularly for employers, is that dependent contractors are owed reasonable notice upon dismissal. As reported by the Toronto Star, the distinction between the classifications is very important. The question at issue in a recent case before the Ontario Court of Appeal (reported on … Continue reading

An agreed demotion may still be unfair

This article was written by Jonathan Jones, a directors at Norton Rose Fulbright South Africa The Labour Appeal Court has confirmed that even if an employee has consented after an enquiry to a demotion as an alternative to dismissal, the demotion may still be unfair. A perception exists that when an employer and employee have … Continue reading

EEOC subject to judicial review on conciliation efforts

On April 29, 2015, reversing a Seventh Circuit decision in Mach Mining, LLC v. Equal Employment Opportunity Commission (“EEOC”), the U.S. Supreme Court held that courts have the authority to review, to a limited degree, EEOC compliance with Title VII’s statutory requirement that the agency first attempt informal conciliation before bringing suit against employers for … Continue reading

What protection do employees have against discrimination on the ground of age in Québec?

Both the Québec Charter of Human Rights and Freedoms (Québec Charter) as well as the Canadian Charter of Rights and Freedoms (Canadian Charter) provide for the right not to be discriminated against on the ground of age. In the context of employment, the Québec Charter prohibits discrimination based on age with respect to the hiring, … Continue reading

What protection do employees have against age discrimination in the US?

Numerous federal, state, and local laws in the US prohibit employers from making employment decisions based on an employee’s or job applicant’s age and thus protecting employees from being discriminated against based on their age. The Age Discrimination in Employment Act of 1967, also known as the ADEA, is the federal law which prohibits age discrimination … Continue reading

Does an employee working in Australia for a British company have the protection of UK employment rights?

This post was contributed by Jonathan Iyer, Trainee, Norton Rose Fulbright LLP (London)  Employees in Great Britain have rights under the Employment Rights Act 1996 not to be unfairly dismissed and not to suffer any detriment for whistleblowing. Can an employee based in Australia working for a British company under a remote working arrangement still seek … Continue reading

Unfair dismissal applications lodged by telephone are not required to specify grounds or remedies

Employees are not required to specify the grounds for their claim or the remedies which they seek when they file an unfair dismissal claim with the Fair Work Commission by telephone, the Commission has ruled in a recent decision. The Fair Work Act 2009 requires an unfair dismissal application to be lodged within 21 days … Continue reading