The Termination of Employment - Essay Example

April 19, Employment Law Case Study Employers are by law allowed to terminate any form of employment by giving appropriate notice period of the intention to terminate the employment relationship between the employer and the employee. The termination of employment may be due to a ‘Just Cause’, which is committed before the time the employee is dismissed. “Just Cause” action provides that an employee is liable for punishment for performing the duties or tasks contrary to either the express or implied instructions or terms of employment. The employer is required to prove just because as a reason for dismissal, which requires him to show proof that the employee has been habitually found to engage in misconduct that eventually resulted in the current dismissal and this may require the tabling of warning letters or specific directives in a court of law. When an employee is dismissed based on ‘Just Cause’ principle, the employer is not obliged to provide notice to the dismissed employee nor is the employee entitled to any pay in lieu of notice. However, certain occasions, the employer may be required to furnish the dismissed employee with reasons for the dismissal. An employee whose service has been terminated through wrongful dismissal may seek remedies through the help of courts of law. Under the common law, such employees can be reinstated to their previous jobs or places of work. As most employment relationships are contractual in nature, the courts of law would most instances determine cases of unfair dismissal based on the principles grounded in contract law. This requires the employers to compensate the wrongly dismissed employee for the earnings and benefits lost during the reasonable period of time they would have been in employment if the notice was given in good time. Under the ‘Wallace Cause’ established in the case of Wallace v United Grain Growers Ltd, the courts established that the employer is under an obligation to give ample notice period of the intention to dismiss an employee and any contravention of this, the courts can extend the dismissal period. This effectively makes employers who act in bad faith by being untruthful and end up dismissing their employees liable for such dismissals. The damage awarded is commensurate with the bad faith demonstrated by the employer and are determined as the determination of other damages in cases involving morals. The damages are calculated from the date the employee was dismissed according to the terms expressed in the contract itself. The computation of damages will include expected earnings, benefits and any other compensation the dismissed employee would have earned if a reasonable period was given. The common law allows for a negotiation of a reasonable period while statutory provisions provide fixed notice periods for notice to dismiss. In summary, a wrongfully dismissed employee is entitled to salary that could have been earned had a reasonable notice period be issued inclusive of any awards in salary increment that may be effected in the period after dismissal and other benefits such as commissions and overtimes. Other benefits that accrue to employees in the course of employment such as houses of residences, insurance and mortgages must be duly paid or given to him. Case Study 2 There are many tests for distinguishing an employee from an independent contractor. It is important to note that all these tests look at the substance or what occurred in such employment relationship rather than what is written in a particular contract. The first and most important test is the level of control that the hiring person has over the performance of the work in terms of place, time and the manner in which it is done. An individual who does not have the control over such aspects is an employee while the vice versa in terms of control refer to an independent contractor. The risk test provides that the independent contractor bears risks that come with the performance of the task as opposed to an employee. Organization test looks at how important the task performed by an individual is important to the company. If not, that person is a self-sufficient service provider while if the person in the organization uses his own tools to perform a tax, that person are an independent contractor. Exclusive performance of a task for a specific organization by an individual over a long period may at times make a person be deemed as an employee of that organization in certain instances. Realtors Ltd does not have to pay the income tax requested by the Canada Customs and Revenue Agency (Tax Department) as Wright is deemed an independent contractor who should bear his own liabilities. Realtors ltd being the principal in the relationship at hand did not have any control on how Wright was performing his special task neither would Wright be liable for risks borne by the company. The fact that he continued to bill according to the rate he was hired and was not bound from doing other tasks in other corporate organizations confirmed his status as an independent contractor, Wright must be made to pay the tax on his own. Case Study 3 The New Brunswick Human Rights Act outlaws any form of discrimination that may result at the place of the employment. Section 3 (1) and (2) of the Act provides that no employer or an employment entity may refuse to employ or retain a person in employment for conditions or state suffered by the person for a number of reasons. This law outlaws discrimination in terms of a person’s social activity, political belief or activity. Monique’s body piercing and tattoos are part of her image and sexuality to improve her appearance in the society. Section 7.1 (1) provides that a person will be deemed to have been harassed in employment when the employer makes an annoying, distressing or irritating comment that is not appealing to another person which also includes a job seeker. Section 7.1 (2) of the same Act provides that no person should be harassed by any employer due to their sexuality even at the time of seeking employment. The above provision clearly show that Monique was harassed by the prospective employers due to her sexuality that included dressing and accessorizing her body like all the other women in the society or in employment. While it is always the desire of employers to regulate the appearance of their employees at the work place in order for them to look professional, at times the strict or often vaguely defined appearance standards may land employers into problems with law enforcement agencies. It has long been considered that employers should not consider irrelevant factors in the performance of the job and these factors must be impermissible even at the time of selection or recruitment and therefore appearance in general should not be the motive for discrimination in employment. The cafeteria is at fault for refusing for refusing to employ Monique whose right to report the discrimination to the Human Rights Council is expressly provided by Section 8 of the Act that provides that no person including cafeterias can refuse to employ, deny or discriminate a person for making a complaint of the discrimination to a relevant authority. It was therefore imperative for the cafeteria to employ Monique before discriminating against her and provide her with the express company policy in terms of what they consider appropriate and neat dressing. Case Study 4 The law provides that a non-union employee is entitled to reasonable notice of the intention of the employer to dismiss him and a severance in lieu of notice if the employee is dismissed without ‘Just Cause’. The failure by the boss to offer adequate awareness is what makes the release unlawful and not the actual execution of unemployment. In any employment situation, it is always assumed that the employee is reasonably competent or has attained some level of competence in the performance of the task of which he is assigned. This allows the employer to terminate the employment of an incompetent employee using the ‘Just Cause’ principle and without giving notice to the affected employee. This requires the employer to prove to the courts that they have effectively rendered their duties and obligations to the employee by outlining tasks assigned to the employee, the expectations of the task to be performed and the standards of performing the task. The employer will be required to prove absolute incompetence on the part of the concerned employee by proving that the employee was unable to accomplish the assigned task, and that the employee has failed to improve in the performance of the task even after numerous warnings and notices to improve. If the incompetent employee is fired after adequate notice has been issued to him will not be entitled to any severance pay, while if there was no notice issued to him. The employee will be obliged to pay severance pay, which in simple terms reinstates the dismissed incompetent employee in the position he would have been, had he not been dismissed. The dismissed incompetent employee has a duty to try to reduce or mitigate his losses if the employer gave adequate notice of the dismissal. The employee has a duty to look for a job of comparable earnings that will enable the courts determine what should be payable to the employee during the time of the dismissal and litigation, this in common law was done through negotiations. An employee can sue for more if there was a breach of contract in the dismissal without adequate notice or in the case when severance pay has been paid it can be found to be inadequate according to the terms of the contract. The employee also has a duty to hand over the properties of the company or the organization even after dismissal within a reasonable time. . . Read More