Tag archives: unfair dismissal

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 positive to cannabis, in breach of Coles’ drug and alcohol policy, which clearly stipulated cut-off levels of alcohol intake and a zero tolerance to illicit drugs for any person employed “at any Coles Distribution Centre in any position.”[1]

Whilst the fairness of … Continue Reading

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

In the UK, a zero hours worker is a casual worker engaged on a zero hours contract. A zero hours contract is defined in UK legislation as a contract of employment or other worker’s contract under which a worker undertakes to perform work conditionally on the employer making such work available, but there is no certainty of such work being made available. In essence it is a contract under which the worker is required to be available to work when requested but no minimum amount of work is guaranteed.

Ban on exclusivity clauses in zero hours contracts

Following significant media … 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 and legislation are gradually restricting the flexibility once offered by these arrangements, zero hours contracts are increasingly being used in Germany (in particular with regard to care workers, teachers, and paramedics).

Typical provisions which can be found in employment contracts read for example:

“The working 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 on Selianov c. ABPTS inc., 2010 QCCRT 0138, in order to explain the burden of proof in the context of redundancy dismissals. Selianov established that in case of dismissal, the employer must prove, on a balance of probabilities, that the economic … 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

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 to withhold production of the report in subsequent proceedings brought by employees, on the basis of a claim for legal professional privilege (LPP).… 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 employee undertaking work for a host company on a particular project.  The employee had worked on this project for 7 years, when he was involved in a ‘near miss’ safety incident.  As a result of this incident the host company advised … 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 than reasonable notice (which may have been less).

The facts were simple. The employee entered into a five year employment agreement but was terminated after 23 months.  The agreement expressly provided for early termination, including termination without cause.  The motion judge found the termination … 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 principal and owner, Presteve Foods (the Employer).

The migrant worker came to Ontario along with her sister to work under the Federal government’s temporary foreign worker program for low-skill occupations. During their employment, the employer subjected the workers to unwanted sexual solicitations … 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 criminal charges to justify a just cause termination and that even a conviction itself may not be sufficient unless the crime has some connection with or impact on the workplace.

In this case, the employer had terminated the employee when they learned that he … Continue Reading

Is it possible for employers to change the terms of employment contracts in the UK?

At common law, a contract can only be amended in accordance with its terms or with the agreement of all the parties. An employment contract is no different – an employer can only change its terms if the contract allows or if the employee agrees to the changes.

It is likely that certain terms will be changed several times during the employment relationship, such as terms relating to an increase in pay or promotion. These changes are likely to occur by mutual consent and so will not cause any problems – what is more difficult is a change to terms … 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 by the Star in the link provided above) was the point in time at which a worker’s “exclusivity” of work with a particular employer is to be assessed. Although the employees in question had 32 and 25 years of service with the employer, respectively, … 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 agreed on the employee’s demotion, the CCMA does not have jurisdiction to hear an unfair labour practice dispute relating to the demotion.The recent judgment of Builders Warehouse (Pty) Ltd v CCMA & others (case number PA1/14) held that even an agreed demotion may potentially be … Continue Reading

Family Ties – Ontario Court finds that Separate Companies are a Common Employer

In a recent case, a 66-year old employee was dismissed from his employment. For a total of nine years, this employee held the same job title, performed the same responsibilities, and was remunerated in the same way. However, after eight years, the employer informed the employee that, going forward, he would be compensated by a different company. When the employee was dismissed a year later, the company provided him with three months’ notice on the basis that he had only been employed with that company for one year.

Ultimately, the Ontario Superior Court of Justice refused to find that … 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 alleged discrimination.

The Mach Mining Court reasoned that compulsory prerequisites to filing suit are routinely enforced by courts and, Title VII, by its own terms, provides judicially manageable criteria for review. As a result, judges can ensure the EEOC has, at a minimum, (1) notified … 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, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying-off, suspension, dismissal or conditions of employment.

Discrimination based on age occurs in the workplace when a distinction, exclusion or preference is made based on a person’s age or because such person belongs to … 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 in the workplace.

The ADEA applies to employers with 20 or more employees. In addition, The Older Workers Benefit Protection Act (“OWBPA”) amended the ADEA to prohibit age discrimination concerning older workers’ employee benefits such as severance and require that any waiver of an … 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 the protection of these rights under UK legislation? Yes, says the Employment Appeal Tribunal (the EAT) in a recent case.

The employee in question originated from Melbourne, Australia and had worked as a Finance Manager for a not-for-profit company in its London office for … 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 of the dismissal taking effect, unless the Commission grants an extension.

The Fair Work Commission Rules 2013, at Rule 9, provides that an unfair dismissal application may be made by telephone, after which the Commission prepares a written application form for the applicant. The applicant … Continue Reading

Evidence collected through stratagems is not admissible

The legal context

Under French employment law, the implementation of a means of monitoring an employee’s activity must be justified by the nature of the task to be performed and must be in proportion to the purpose sought. It must also comply with a specific procedure involving informing employees in advance of such means of monitoring, information to and consultation with employees’ representatives (if any) and where relevant the intervention of the French data protection authority. Breach of these rules by the employer permits a court to reject any evidence obtained by illicit means against an employee.

In this context, … Continue Reading

Does safety have to be compromised to avoid a legal headache?

Under work health and safety laws across Australia, employers have an obligation to provide employees and others (including the public) with a safe workplace.  At the same time, employers are also required to treat their employees fairly, particularly when terminating their employment[1].

Fulfilling both obligations simultaneously often creates a difficult task for employers, especially in circumstances where an employee’s employment has been terminated as a result of a breach of an employer’s health and safety policy.

The Full Bench of the Fair Work Commission (Commission) in Harbour City Ferries Pty Ltd v Toms[2014] FWCB 6249 … Continue Reading

Probationary period: compliance with the notice period may give rise to a new employment contract

The legal background

Under French employment law, the provision of a probationary period in an employment contract entitles the employer to terminate the contract without being required to follow a dismissal procedure or to justify the termination on real and serious grounds. However, the termination of an employment contract during a probationary period must be preceded by a notice period the length of which depends on the employee’s period of service within the company. In this respect, the labor code states that the notice period may not have the effect of extending the term of the probationary period.

In this … Continue Reading