21. Unfair Dismissal and Constructive Dismissal

Business Law ◽  
2018 ◽  
Author(s):  
James Marson ◽  
Katy Ferris
Keyword(s):  
Common Law ◽  
Correct Procedure ◽  
Unfair Dismissal ◽  
The Common ◽  
The Law ◽  
Wrongful Dismissal

This chapter considers the termination of employment, and how it is governed by statutory measures—in cases of unfair dismissal—and the common law—in cases of wrongful dismissal. Each of these provisions outlines important factors when the contract is to be ended. Being aware of the procedures involved in each of these areas of law will ensure terminations can take effect without unnecessary recourse to court or tribunal action, saving time and money. In dismissing an employee, the law provides for the correct procedure to be adopted, the potentially fair reasons that justify a dismissal, along with automatically unfair reasons to dismiss an employee. Disregarding these may lead to claims for unfair dismissal, the defence of which can be expensive for employers.

21. Statutory Regulation of Dismissals

Business Law ◽  
2020 ◽  
pp. 538-564
Author(s):  
James Marson ◽  
Katy Ferris
Keyword(s):  
Common Law ◽  
Correct Procedure ◽  
Unfair Dismissal ◽  
The Common ◽  
The Law ◽  
Wrongful Dismissal ◽  
Statutory Regulation

This chapter considers the termination of employment, and how it is governed by statutory measures—in cases of unfair dismissal—and the common law—in cases of wrongful dismissal. Each of these provisions outline important factors when the contract is to be ended. Being aware of the procedures involved in each of these areas of law will ensure terminations can take effect without unnecessary recourse to court or tribunal action, saving time and money. In dismissing an employee, the law provides for the correct procedure to be adopted, the potentially fair reasons that justify a dismissal, along with automatically unfair reasons to dismiss an employee. Disregarding these may lead to claims for unfair dismissal, the defence of which can be expensive for employers.

8. Employment II: termination—wrongful dismissal, unfair dismissal, and redundancy

2019 ◽  
pp. 114-129
Author(s):  
James Marson ◽  
Katy Ferris
Keyword(s):  
Common Law ◽  
Essential Information ◽  
Employment Contract ◽  
Contract Employees ◽  
Unfair Dismissal ◽  
The Common ◽  
The Law ◽  
Employment Rights ◽  
Wrongful Dismissal

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter reviews the law on the termination of the employment contract. Employees have a statutory right not to be unfairly dismissed and the Employment Rights Act (ERA) 1996 identifies the criteria to be satisfied in order for the employee to gain protection. The common law protects against wrongful dismissal and provides tests and guidance for situations involving a breach of an employment contract. The chapter also considers redundancy situations. As this is governed by statute, it is necessary to appreciate the obligations imposed on the employer to adopt fair procedures.

scholarly journals Recent Developments in Wrongful Dismissal Laws and Some Pointers for Reform

1969 ◽  
pp. 470 ◽  
Author(s):  
G. England
Keyword(s):  
Nova Scotia ◽  
Common Law ◽  
Just Cause ◽  
Grievance Arbitration ◽  
Employment Termination ◽  
Recent Developments ◽  
The Common ◽  
The Law ◽  
Federal Jurisdiction ◽  
Wrongful Dismissal

This paper examines recent developments in the law of wrongful dismissal. It demonstrates that the current common law fails to regulate satisfactorily terminations of employment and proposes an alternative statutory scheme. Part considers the "minimum contents" required of fair and just system of employment termination. Part II examines the common law response and its inadequacies. Part III suggests proposals for reform, drawing on the ex periences of statutory "just cause"protections in Nova Scotia and England and in Canadian grievance arbitration. Also, the proposed amendments to the Canada Labour Code in bill C-8,1 which introduces "just cause"protections for workers within Federal jurisdiction are considered.

20. Dismissal at Common Law; Redundancy and the Transfer of Undertakings

Business Law ◽  
2018 ◽  
Author(s):  
James Marson ◽  
Katy Ferris
Keyword(s):  
Common Law ◽  
Contract Law ◽  
Employment Relationship ◽  
Good Working ◽  
The Common ◽  
The Law ◽  
The 1960S ◽  
Wrongful Dismissal

This chapter identifies the remedy for the termination of contracts of employment through the common law claim of wrongful dismissal. It addresses situations of redundancy, and the rights of individuals and obligations on employers when the business is transferred to a new owner. Each of these measures offer protection to employees, and employers should understand the nature of these rights, the qualifications necessary for each mechanism, and the remedies available, to ensure they select the most appropriate mechanism to bring the employment relationship to an end. Before the 1960s, contracts of employment were largely dealt with by the ‘normal’ rules of contract law and were often heard by courts that hear contractual disputes. It is important to be aware of the mechanisms that will enable termination of the employment relationship without transgressing the law in order to maintain good working relations.

20. Ending Employment Contracts at Common Law; and Duties to Redundant and Transferring Staff

Business Law ◽  
2020 ◽  
pp. 510-537
Author(s):  
James Marson ◽  
Katy Ferris
Keyword(s):  
Common Law ◽  
Contract Law ◽  
Employment Relationship ◽  
Employment Contracts ◽  
Good Working ◽  
The Common ◽  
The Law ◽  
The 1960S ◽  
Wrongful Dismissal

This chapter identifies the remedy for the termination of contracts of employment through the common law claim of wrongful dismissal. It addresses situations of redundancy, and the rights of individuals and obligations on employers when the business is transferred to a new owner. Each of these measures offer protection to employees, and employers should understand the nature of these rights, the qualifications necessary for each mechanism, and the remedies available, to ensure they select the most appropriate mechanism to bring the employment relationship to an end. Before the 1960s, contracts of employment were largely dealt with by the ‘normal’ rules of contract law and were often heard by courts that hear contractual disputes. It is important to be aware of the mechanisms that will enable termination of the employment relationship without transgressing the law in order to maintain good working relations.

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness

2021 ◽  
pp. 136571272110022
Author(s):  
Jennifer Porter
Keyword(s):  
Western Australia ◽  
Common Law ◽  
South Australia ◽  
Judicial Discretion ◽  
Trial Judge ◽  
Important Policy ◽  
Oral Testimony ◽  
The Common ◽  
The Law ◽  
Confession Evidence

The common law test of voluntariness has come to be associated with important policy rationales including the privilege against self-incrimination. However, when the test originated more than a century ago, it was a test concerned specifically with the truthfulness of confession evidence; which evidence was at that time adduced in the form of indirect oral testimony, that is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the form of an audiovisual recording that can be observed directly by the trial judge, rather than as indirect oral testimony, there may be capacity for a different emphasis regarding the question of admissibility. This article considers the law currently operating in Western Australia, Queensland and South Australia to see whether or not, in the form of an audiovisual recording, the exercise of judicial discretion as to the question of the admissibility of confession evidence might be supported if the common law test of voluntariness was not a strict test of exclusion.

The Coalition's Plan to Regulate Industrial Relations

1993 ◽  
Vol 4 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Braham Dabscheck
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Good Faith ◽  
The Common ◽  
Industrial Conflict ◽  
The Law

In October 1992 the federal coalition released Jobsback, a statement of its industrial relations policies. The article situates Jobsback in the context of the evolution of the coalition's industrial relations policies since the Fraser years, outlines its major features, and provides a critique. Jobsback erects a new regulatory schema under a banner of deregulation. Three key elements are contained in Jobsback. They are tribunal avoidance and the use of the common law, legislatively imposed employment rules to ‘aid’ the transition from an award to a non-award system, and enterprise confinement. The article draws attention to the coalition's views concerning industrial conflict, constitutional issues, transitional problems associated with establishing legislatively imposed workplace rules, minima in workplace agreements, the Office of the Employee Advocate, equality before the law and good faith bargaining.

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