Tag archives: wrongful dismissal

The beginning of a revolution (by the French lower courts) ?

French President Emmanuel Macron implemented a significant reform of the French employment code in late 2017, with the intention of providing employers greater flexibility and predictability in managing labour relations.

One of the most controversial measures was the creation of a grid applicable to the amount of indemnities due to employees for unfair dismissal, setting minima and maxima as a function of the length of service of the employee and the headcount of the employing entity.

Prior to the adoption of the grid, courts were free to determine the amount of damages payable to unfairly dismissed employees based on the … Continue Reading

What’s in a grade?  

 

The beginning of summer break for students across Ontario also means the release of their final grades. While student evaluation is only one part of a teacher’s job, it is crucial for the integrity of the school system and for students’ post-secondary education opportunities. In the recent decision Fernandes v Peel Educational & Tutorial Services Ltd., the Ontario Court of Appeal stressed the importance of proper grading techniques for teachers in private schools.

Mr. Fernandes was employed as a teacher at a private school in Mississauga offering pre-kindergarten to grade 12 classes. During the course of his employment, … Continue Reading

Not all Messages Constitute #Justcause

In a time where social media is everywhere and a business’s reputation means everything, employers continue to try and understand how certain posts on social media can justify an employee’s termination in the appropriate circumstances.

In  MacKinnon v Helpline Inc., the Court ruled that an employee’s private, non-confidential, off-duty communications via Facebook and MSN e-mail to a third party reporter did not constitute just cause for that employee’s dismissal.

The reporter had approached the employee and informed her of problems a member of the board of the employer had encountered prior to working for the employer. The … Continue Reading

Notice rights – what rights do employees have to notice of termination of employment in the US?

Employees in the United States are generally considered employed at-will in most jurisdictions, meaning that either the employee or the employer can terminate the relationship at any time, for any reason or no reason at all, without providing notice. The general rule gives way, however, in limited circumstances which trigger certain federal (and potentially state-specific) statutory notice requirements. The Worker Adjustment and Retraining Notification (WARN) Act and the Older Worker Benefit Protection Act (OWBPA) are two such statutes. Although the notice provisions under these laws apply in relatively narrow circumstances, failure to comply when they are triggered can result in … Continue Reading

Notice rights – what rights do employees have to notice on termination of employment in the UK?

In the UK, an employee’s notice rights are governed primarily by the terms of the employment contract but are also subject to the statutory right to a minimum period of notice dependent on length of service.

Notice will usually be required to terminate the employment contract lawfully. Exceptions to this, where there are lawful grounds for termination without notice, are explained further below.

Contractual right to notice

As a general rule, the period of notice to which an employee is entitled on termination of employment is expressly set out in the terms of the employment contract. As long as this … 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

Case Brief: On deduction of pension benefits from wrongful dismissal damages

In August 2011, the British Columbia Court of Appeal held that pension benefits received by an employee during the reasonable notice period were not to be deducted from wrongful dismissal damages for that period: 2011 BCCA 337. A 7-member majority of the SCC agreed with that approach in IBM Canada Limited v Waterman, 2013 SCC 70.

The majority noted that, under what has been described as the ‘private insurance exception’, a benefit received by the employee is not generally deducted from wrongful dismissal damages if (a) the benefit is not in the nature of an indemnity for the loss caused … Continue Reading

Employee Rights on Redundancy – Avoiding Discrimination in Organizational Restructuring

When job redundancies arise in an organization, whether as result of a merger, restructuring, or downsizing, employers need to remain aware of duties under human rights legislation, such as the Ontario Human Rights Code.

To meet these expectations, an employer’s decision regarding which employees will lose their jobs can not be tainted in any way by discriminatory decision-making. For example, if terminations are being decided on the basis of poor performance, it could be considered discriminatory if accommodated employees are included – where their lower performance is tied to their limitations due to disability. To ensure fairness and avoid … Continue Reading

Go abroad?

The German Federal Labour Court recently decided that dismissals for redundancy reasons can be made even if free positions are available at another business unit abroad.

In the case at hand, an employer decided to move its production from Germany to the Czech Republic. Only the administration department remained in Germany. Thus, the employer dismissed all staff employed in production for redundancy reasons. The claimant argued that her dismissal was unlawful as the employer should have offered her the opportunity to move to the Czech Republic by issuing a “dismissal with the option of altered conditions”. The court, however, decided … Continue Reading

Unfair dismissal in France

Under French law, in order to be valid, a dismissal must be based on a real and serious cause which must be exact, precise, objective and of a sufficiently serious nature to justify the dismissal. This requirement applies to any type of dismissal regardless of the age / position / length of service of the employee and the headcount of the company.

Dismissal for personal reasons or for economic reasons

There are two main categories of dismissal:

  • Dismissal for personal reasons, in which the dismissal is based on reasons that relate to the employee (misconduct, poor performance, absence, etc);
  • Dismissal
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Good practice in South Africa: When is it fair to dismiss?

Everyone in South Africa has the right to fair labour practices.  And everyone, through the Labour Relations Act, has the right not to be unfairly dismissed.  Legislation provides three broad grounds for dismissal:

  1. Misconduct;
  2. Incapacity/ poor performance; and
  3. Operational requirements.

In order for a dismissal on any of these grounds to be conclusive, it must be both substantively and procedurally fair.

How precisely this will be determined depends on the facts of each matter, but the Code of Good Practice: Dismissal points employers towards the circumstances of the case and the appropriateness of dismissal as a penalty.  Factors that … Continue Reading

Wrongful Dismissal in Venezuela

One thing is very clear under Venezuela legislation, it is almost impossible to dismiss a worker.

A.      Job Stability

Theoretically, the Labour Law allows employers to terminate workers with or without cause.

  1. Employers are able to terminate workers with cause based on the grounds listed in Article 79 of the Labour Law. Employers have a term of five workdays for reporting the justified dismissal to the labor courts.
  2. Employers are also able to dismiss workers without just cause, however, such termination shall only be effective if the employee accepts the termination and receives payment of an indemnity for dismissal. The
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Wrongful and unfair dismissal in the UK

On the termination of employment in the UK, leaving aside issues of discrimination, human rights, and claims for a redundancy payment, an employee has two key types of potential claim against his employer.

Wrongful dismissal

The first is a claim of wrongful dismissal, which is a claim based in contract.

In essence, a claim of wrongful dismissal arises where the dismissal is in breach of the terms of the employment contract. Typically this will involve termination without giving the notice period required under the terms of the contract. (In certain limited circumstances, such as when the employee has been guilty … Continue Reading

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