scholarly journals Casual Employment Contracts and Their Status in the Current Climate. Summary of a Workshop.

Author(s):  
Judith Ferguson

Judith Ferguson led a workshop on casual employment, focussing on the legal implications surrounding the status of a casual worker. The workshop was concerned with legal access to personal grievance procedures and, by implication, the right to fair and reasonable treatment from an employer, particularly at the end of the employment relationship.

Obiter ◽  
2021 ◽  
Vol 41 (3) ◽  
pp. 555-572
Author(s):  
Johana K Gathongo

An employer may require a newly hired employee to serve a reasonable period of probation to establish whether or not his or her performance is of an acceptable standard before permanently engaging the employee. Even so, the current provisions relating to termination of probationary employees under the Employment Act, 2007 (EA) remains a source of concern. Currently, an employer may terminate the employment of a probationary employee at will and without affording such employee an opportunity to be heard. The status quo has received firm approval by the Employment and Labour Relations Court accentuating that employers are immune from claims of unfair termination of a probationary employee. This article argues that for termination to be considered procedurally fair whether during a probation period or not, it should be preceded by an opportunity for an employee to state a case in response to the charges levelled against him or her. This article highlights that all laws in Kenya, including the EA are subject to the Constitution, particularly article 41(1) of the Constitution which guarantees “every person” the right to fair labour practice. Equally, article 27 of the Constitution states that everyone is equal before the law and has a right to equal protection and benefit of the law. Allowing employers’ the freedom to terminate employment without following due process certainly open up the floodgates for abuse of the primary purpose of probation. The mere fact that a contract of employment is labelled as “probationary contract” should not be used as a licence by employers to erode the constitutionally entrenched labour rights. The primary purpose of any good law is to advance the achievement of equity and fairness at the workplace. This can only be achieved by protecting vulnerable and marginalised employees such as probationary employees who participate in unpredictable forms of employment. This article maintains that prominence should be on the existence of an employment relationship and fair labour practice as opposed to the existence of a conditional contract of employment. The existence of an employment relationship should serve as the main “port of entry” through which all employees access the rights and protection guaranteed by labour legislation.


2021 ◽  
Vol 2 (3) ◽  
pp. 574-584
Author(s):  
Hamam Hamam

Fornication is a kind of jarimah (felony) resulting in confusion of the biological father. However, nowadays, there is clarity on the status of the children out of marriage. The Constitutional Court issued a decision of regulation No. 46/PUU-VIII/2010 on February 27th, 2012 about the out wedlock children who have a civil relationship and the blood rapport with their biological father as long as it can be proven biologically. This regulation drives some criticisms from various parties; the pro-side of the Court Regulation will claim it in the term of the doer of the adultery, while the contra-side of the Court Regulation will review it in the term of legalized the adultery. Furthermore, the aims of this study are: First, to know the opinion of jurists' law (fuqaha‟) about the status of the out of wedlock children; Second, to find the legal implications of the out of wedlock children after the application of the Constitutional Court regulation No. 46/PUU-VIII/2010 on February 27th, 2012 based on the Fuqaha' perspective?. Moreover, this study uses the library research. The data are collected through the documentary of the primary and secondary data sources. The collected data are, then, analyzed qualitatively by using the content analysis. The results of this study are: Firstly, This according by the Shafi'i jurists' of four and the ad-Dzahiri the out of wedlock children (bastard) are not related to their biological father, but they are related to their biological mother and her family. Secondly, This according by some groups of Hanafi and Shaykh of Islam Ibn Taymiyah corroborated by ibn Qayyim al-Jauziyyah the wedlock children (bastard) are related to the men as their biological father and their father's family. Thirdly, the Constitutional Court (MK) regulations do not have any legal implications associated on the civil relationships of the out wedlock children (natural children) with their biological father. Moreover, the attitude of the biological father is classified as a jarimah (felony), and it is entitled to a penalty of the ta'zir; it is an obligation to provide the children, which the amount is considered to the fit and proper in accordance income of his; while the other civil rights includes the right of lineage, inheritance, and the rights of guardians. The ta'zir punishments in the provision of livelihood can be executed after the filing of a lawsuit and obtain an order from the Religion Court. The provision of the living is solely to satisfy the justice and legal protection for the interests of children's rights.


2016 ◽  
Vol 10 (2) ◽  
pp. 199
Author(s):  
Tomasz Duraj

Appointment as the Basis for Establishing Employment Relationship of a Director of a State EnterpriseSummary The subject of this study is a detailed characteristics of the act of appointment as the basis for employment relationship of a director of a state enterprise. The director is the most important managing and executive body of a state enterprise, and the legal status of a director is regulated by the State Enterprises Act of 25 September 1981 .In relation to a director of a state enterprise there is a special situation, within which there is a legal obligation to utilize the employment relationship by appointment as the basis for employment. It is the only admissible legal relation, on the basis of which a director can work for a state enterprise. The employee status of a director of a state enterprise is primarily regulated by the labor code regulations regarding appointment (articles 68-72 of the labor code), while, according to article 69 of the labor code, to this employment relation – with some exceptions –the regulations regarding employment contracts for an unspecified time are also applicable. In this article the author analyses the issue of establishing and terminating the employment relation with a director of a state enterprise. Particular attention ought to be paid to the specific situation of a director of a state enterprise with regard to the stabilization of his or her employment. It is significantly more advantageous as compared to the situation of other employees employed by appointment. According to the regulations in force, there are no reservations to the principle of removing persons from the posts filled within the institution of appointment in any time and without the necessity to indicate any causes. However, this principle is limited with relation to a director of a state enterprise, due to the specific procedures of dismissal of this category of employees statutory by the act of state enterprises as well as additional rights to which a dismissed director is entitled, especially the right for a dismissal allowance.


Author(s):  
Yaroslav Skoromnyy ◽  

The article presents the conceptual foundations of bringing judges to civil and legal liability. It was found that the civil and legal liability of judges is one of the types of legal liability of judges. It is determined that the legislation of Ukraine provides for a clearly delineated list of the main cases (grounds) for which the state is liable for damages for damage caused to a legal entity and an individual by illegal actions of a judge as a result of the administration of justice. It has been proved that bringing judges to civil and legal liability, in particular on the basis of the right of recourse, provides for the payment of just compensation in accordance with the decision of the European Court of Human Rights. It was established that the bringing of judges to civil and legal liability in Ukraine is regulated by such legislative documents as the Constitution of Ukraine, the Civil Code of Ukraine, the Explanatory Note to the European Charter on the Status of Judges (Model Code), the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the procedure for compensation for harm caused to a citizen by illegal actions of bodies carrying out operational-search activities, pre-trial investigation bodies, prosecutors and courts», Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance of the Constitution of Ukraine (constitutionality) of certain provisions of Article 2, paragraph two of clause II «Final and transitional provisions» of the Law of Ukraine «On measures to legislatively ensure the reform of the pension system», Article 138 of the Law of Ukraine «On the judicial system and the status of judges» (the case on changes in the conditions for the payment of pensions and monthly living known salaries of judges lagging behind in these), the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights».


Author(s):  
Lisa Rodgers

‘Ordinary’ employment contracts—including those of domestic servants—have been deemed to attract diplomatic immunity because they fall within the scope of diplomatic functions. This chapter highlights the potential for conflict between these forms of immunity and the rights of the employees, and reflects on cases in which personal servants of diplomatic agents have challenged both the existence of immunity and the scope of its application. The chapter examines claims that the exercise of diplomatic immunity might violate the right to a fair trial under Article 6 of the European Convention on Human Rights and the way in which courts have dealt with these issues. The chapter analyses diplomats’ own employment claims and notes that they are usually blocked by the assertion of immunity, but also reflects on more recent developments in which claims had been considered which were incidental to diplomatic employment (eg Nigeria v Ogbonna [2012]).


Author(s):  
Mark Hill QC

This chapter focuses on the clergy of the Church of England. It first explains the process of selection and training for deacons and priests, along with their ordination, functions, and duties. It then considers the status and responsibilities of incumbents, patronage, and presentation of a cleric to a benefice, and suspension of presentation. It also examines the institution, collation, and induction of a presentee as well as unbeneficed clergy such as assistant curates and priests-in-charge of parishes, the authority of priests to officiate under the Extra-Parochial Ministry Measure, the right of priests to hold office under Common Tenure, and the role of visitations in maintaining the discipline of the Church. The chapter concludes with a discussion of clergy retirement and removal, employment status of clergy, vacation of benefices, group and team ministries, and other church appointments including rural or area deans, archdeacons, diocesan bishops, suffragan bishops, and archbishops.


2004 ◽  
Vol 37 (2-3) ◽  
pp. 299-345 ◽  
Author(s):  
Yoram Rabin ◽  
Yuval Shany

AbstractThis article addresses the constitutional discourse surrounding the status of economic and social rights in Israel. It examines the principal interpretive strategies adopted by the Supreme Court with regard to the 1992 basic laws (in particular, with respect to the right to human dignity) and criticizes the Court's reluctance to apply analogous strategies to incorporate economic and social rights into Israeli constitutional law. Potential explanations for this biased approach are also critically discussed. The ensuing outcome is a constitutional imbalance in Israeli law, which perpetuates the unjustified view that economic and social rights are inherently inferior to their civil and political counterparts, and puts in question Israel's compliance with its obligations under the International Covenant of Economic, Social and Cultural Rights. At the same time, encouraging recent Supreme Court decisions, particularly the YATED and Marciano judgments, indicate growing acceptance on the part of the Court of the role of economic and social rights in Israeli constitutional law, and raise hopes for a belated judicial change of heart concerning the need to protect at least a ‘hard core’ of economic and social rights. Still, the article posits that the possibilities of promoting the constitutional status of economic and social rights through case-to-case litigation are limited and calls for the renewal of the legislation procedures of draft Basic Law: Social Rights in the Knesset.


2021 ◽  
Vol specjalny II (XXI) ◽  
pp. 377-386
Author(s):  
Tomasz Duraj

The subject of the foregoing study is an analysis of the specific rules for the remuneration of members of a worker cooperative who, by contributing to the organisation, participate in the economic risks associated with its operation. Each member of a worker cooperative is guaranteed the right to participate in the profit (balance surplus) of the cooperative, but at the same time participates in covering its losses up to the amount of the declared contribution. This special status of members of a worker cooperative, together with the obligation to work for that organisation on the basis of an employment relationship, has an impact on the remuneration of that category of workers. This can be seen in the structure of their remuneration, which consists of the current salary and the share of the balance surplus to be distributed among the members in accordance with the rules laid down in the statutes. Moreover, the current salary of a member of a worker cooperative and his share of the balance surplus are under protection provided by labour law for the remuneration of the employees.


2017 ◽  
pp. 65-89
Author(s):  
Rocky Marciano Ambar ◽  
Budi Santoso ◽  
Hanif Nur Widhiyanti

Banks in credit agreements use more standard agreements, standard contracts in 2 (two) things, (1) There is an unbalanced position between banks and debtors, banks that have a more dominant position and debtors. (2) There is an understanding of the principle of freedom of contracting and without limits. The Bank has the freedom to seek the form and content of the agreement. Code of Ethics in agreement. The provisions of the Civil Code provide types of compensation for parties. Based on the background, then for problems the problem is written (1). Does the inclusion of Article 1266 and Article 1267 of the Civil Code on the banking system have collected the principles of balance and justice. (2) What are the legal implications of the exclusion clause. The research method is normative juridical research. The result of this research is the neglect of civil law and the principle of compensation is the principle of balance. The basic principle according to Rawls is that it is unfair or more people. in the sense of "freedom of results", in other words. is the nature of the debtor in a bank credit agreement. For the legal implications of the clause that excludes Article 1266 and Article 1267 of the Civil Code concerning the right of the debtor to the debtor. Legal efforts in finding and resolving problems that cannot be made by a decision due to the imbalance of the parties in the agreement. For people who make changes, no party will be harmed.


2021 ◽  
Author(s):  
Yamini Aiyar ◽  
Vincy Davis ◽  
Gokulnath Govindan ◽  
Taanya Kapoor

The study was not designed to undertake an evaluation of the success or failure of reform. Nor was it specifically about the desirability or defects of the policy reform choices. It took these reform choices and the policy context as a given. It is important to note that the Delhi reforms had its share of criticisms (Kumar, 2016; Rampal, 2016). However, our goal was not to comment on whether these were the “right” reforms or have their appropriateness measured in terms of their technical capability. This study sought to understand the pathways through which policy formulations, designed and promoted by committed leaders (the sound and functional head of the flailing state), transmit their ideas and how these are understood, resisted, and adopted on the ground. In essence, this is a study that sought to illuminate the multifaceted challenges of introducing change and transition in low-capacity settings. Its focus was on documenting the process of implementing reforms and the dynamics of resistance, distortion, and acceptance of reform efforts on the ground. The provocative claim that this report makes is that the success and failure, and eventual institutionalisation, of reforms depend fundamentally on how the frontline of the system understands, interprets, and adapts to reform efforts. This, we shall argue, holds the key to upending the status quo of “pilot” burial grounds that characterise many education reform efforts in India. Reforms are never implemented in a vacuum. They inevitably intersect with the belief systems, cultures, values, and norms that shape the education ecosystem. The dynamics of this interaction, the frictions it creates, and reformers’ ability to negotiate these frictions are what ultimately shape outcomes. In the ultimate analysis, we argue that reforming deeply entrenched education systems (and, more broadly, public service delivery systems) is not merely a matter of political will and technical solutions (although both are critical). It is about identifying the points of reform friction in the ecosystem and experimenting with different ways of negotiating these. The narrative presented here does not have any clear answers for what needs to be done right. Instead, it seeks to make visible the intricacies and potential levers of change that tend to be ignored in the rush to “evaluate” reforms and declare success and failure. Moving beyond success to understand the dynamics of change and resistance is the primary contribution of this study.


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