Legal Principles Issues - Essay Example

Law ial Legal Principles in Negligence Negligence refers to the failure to undertake a responsibility that is deemed as own. This means that a person commits an offence because he or she failed to do what he or she was supposed to do, or in the way they were supposed to do it. Legally, people are imposed by the law to perform and act in a certain ways towards others. Some of these impositions are duties of care and failure to act on them causes an injury or harm to the other person and then a tort of negligence is said to have been committed. The principles of negligence first seek to establish that a particular person or organization, the defendant, is actually bound by the law to care for the complaint. In the case of a hotel employee who suffers due to the facilities or as a result of the assault by another employee of the same hotel, the plaintiff is, therefore, justified to file a case accusing the hotel of negligence. This is because the law identifies the duty of care as a responsibility of organizations on their clients, customers and employees. In this case, the hotel should have protected the injured employee from harm by the virtue of being an employee in the organization (Stewart & Stuhmcke 2009, p. 260). For there to be negligence, there are four elements that must be present. First, there must be an identifiable duty of care that the defendant owed the plaintiff. For this case, there should be proof that the plaintiff at the time of the said harm was covered by the duty of care imposed on the organization. This means that the plaintiff, in this case of hotel injury, must have been within the hotel premises and an employee of the organization. If, for instance, the harm happened elsewhere or at this time the plaintiff had ceased to be an employee at the hotel, the duty will not be owed (Lanham 2006, p.123). The second condition is that this duty of care owed must be evidently breached. The breach must not be intentional, and unintentional negligence is also regarded as a tort. The third condition is that there must be harm or damage that is caused directly by the neglect. This however must be proved to ensure that there is a direct link between the alleged negligence and the harm. Harm resulting from anything else is not considered. The fourth consideration is if there are any defendants in the case (Bar & Drobnig 2004, p.24). In our case, the hotel patron is injured by the security personnel at the hotel. The hotel is bound by the law to protect or care for the employees and customers. This, therefore, means that the hotel owes the plaintiff a duty of care. This duty was evidently breached because the hotel could not prevent the security personnel from attacking the plaintiff. As a result, the plaintiff suffered a head injury that is directly related to the incidence. In this case, the hotel patron is the plaintiff, and the hotel is the defendant, there is actually the case with enough merits (Tomasic, Bottomley & Mcqueen 2002, p.345). Lawful and Unlawful Employment Termination The employment relationship is a simple form of contract. It can, therefore, be discharged as a normal contract in which two parties come together and make promises that have to be kept. An employment contract can be terminated under several conditions outlined in the law. First, an employment contract is terminated by death. This is because the nature of the employment contract is an agreement between two peoples if one of the persons dies, then there is no contract existing and the employment is terminated (Riley 2005, p.65). The second method of terminating the contract of employment is absolute dissolution or bankruptcy. When a company is dissolved, suffers bankruptcy or partners separate, then the employer(s) automatically cease to exist. This means that all the employees who were working in the company have their employment contracts terminated. In such a case there is limited claims or wages protection that the employees can obtain from the law (Gardner & Palmer 1997, p.89). A third form of termination occurs when a company is auctioned or sold to a new owner. When the sale is complete, the contracts signed with the previous owners automatically become void. This has always been the ruling in many cases brought forward in the courts of law. Those employees who remain in the company under the new ownership sign new contracts under new terms. However, to cushion workers from losses the Fair Work Act (2009), provides that when a transfer of enterprise ownership is done, the agreement that covered the employees continue covering them under the new management (Blanpain, Nakakubo & Araki 2010, p 353). The fourth method of employment contract termination is frustration. This occurs when a company suffers damage from natural causes such as earthquakes or floods such that job opportunities are lost. It however does not cover employee’s injuries that make them incapable of performing duties as according to the contract (Mitchell & Deery 1999, p. 245). Contract termination can be by notice, whereby according to the contract agreement, the employer notifies the employee of the end of the contract within the specified period of notice. The court assesses the reasonability of the notice to verify whether the termination was legal. In the termination without notice. This is justifiable in cases where the conduct of the employee is sufficient to justify summary of instant dismissal. Getting the facts wrong or basing the reasoning on non-facts is dangerous for the employer. If an employee terminates the contract without notice, the law could bind him to award the employer an agreed amount of money. However, most employers view such a pursuit to be costly and not profitable. Termination by redundancy is based on external factors. It is, therefore, no one’s fault that the employee’s job no longer exist. This termination should be preceded by reasonable notice and sometimes the employer gives a handshake to the retrenched employees (Blanpain, Nakakubo & Araki 2010, p 345). Care must be taken by both the employer and the employee in the employment contract to ensure that contracts are not terminated unlawfully. The party that is hurt by unlawful employment contract termination can sue the defendant party, and the court may rule anyway depending on the facts and agreements on the written contract. References Blanpain, R., Nakakubo, H., & Araki, T. (2010). Regulation of fixed-term employment contracts: a comparative overview. Alphen aan den Rijn, Kluwer Law International. Bar, C. V., & Drobnig, U. (2004). The interaction of contract law and tort and property Law in Europe: a comparative study. München, Sellier European Law Publ. Gardner, M., & Palmer, G. (1997). Employment relations: industrial relations and human resource management in Australia. South Melbourne, Macmillan Education Australia. Lanham, D. (2006). Criminal laws in Australia. Annandale, N.S.W., The Federation Press. Mitchell, R., & Deery, S. (1999). Eployment Relations: the Federation Press. Riley, J. (2005). Employee protection at common law. Annandale, N.S.W., Federation Press. Stewart, P., & Stuhmcke, A. (2009). Australian principles of tort law. Sydney, Federation Press. Tomasic, R., Bottomley, S., & Mcqueen, R. (2002). Corporations law in Australia. Sydney, Federation Press. Read More