Employment Law- Unfair Dismissal
- Created by: viktorijalenk
- Created on: 08-05-19 16:05
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- Unfair dismissal
- Statutory claim
- Liability
- S.94(1) ERA 1996
- 'An employee has the right not to be unfairly dismissed by his employer'
- Gives you a right to sue for U.D
- Employee- S.94
- 'An employee has the right not to be unfairly dismissed by his employer'
- Who proves what?
- CLAIMANT
- Establish
- Employee
- Sufficient continuity of employment to claim
- That they have been dismissed
- Establish
- Respondent (employer)
- Reason for dismissal
- That the reason is potentially fair
- E.T determines whether the dismissal is fair or unfair
- CLAIMANT
- S.94(1) ERA 1996
- Settlements
- Binding where legal advice has been received
- Automatically unfair
- S.99 Maternity, maternity leave, pregnancy and other family rights
- S.100 complaining about or refusal to work because of a health or safety issue
- S.104 & 104A asserting a statutory right
- S.152 TULRCA 1992 due to legit. trade union activity
- Types of dismissal claims
- 3 methods
- S.95(1)(a) ERA- employee dismissed by employer with or without notice
- S.95(1)(b)- Limited term contract not renewed
- S.95(1)(C)- Constructive dismissal
- Employer without reasonable and proper cause conducts himself in a way that is likely to destroy the relationship or trust + confidence which exists between the parties
- Has to be proved to be unfair
- B.O.P
- On the employee
- 3 methods
- Section 203 ERA
- Igno v Johnson Matthey
- Any contract terminates if X clause is invalid, and such circumstances should be understood as a dimissal
- Prohibits any contractual attempt to avoid the provisions on UD through a terminating event
- Any contract terminates if X clause is invalid, and such circumstances should be understood as a dimissal
- Igno v Johnson Matthey
- Resignation
- Kwik Fit v Lineham
- A resignation in the heat of the moment is not a conclusive resignation
- J&J Stern v Simpson
- If words of dismissal or resignation are unambiguous, they cannot be overridden by appeals to what a reasonable employee or employee might have to taken them to mean
- If the words are ambiguous= The test is what would a reasonable employer have understood by words in that context
- Kwik Fit v Lineham
- Frustration
- A contract may be discharged by frustration
- Occurs when there exists a change in circumstances after the contract was made, which is not the fault of either parties, which renders the contract impossible to perform
- EDT
- Effective Date of Termination
- S.97
- S.97(1)(a)
- Date notice expires if notice is given
- S.97(1)(b)
- Date of dismissal if employee dismissed without notice
- S.97(1)(c)
- Date a limited term contract expires without a renewal
- Date of dismissal if dismissed with PILON
- The Statutory Test
- Potentially Fair Grounds for Dismissal
- S.98(1) and (2)
- 5 Statutory Reasons that may be fair
- S.98(2)(a) ERA 1996
- Capability/Qualifications
- Slow worker
- Poor quality work
- Unsuitable personality for the work environment
- Long term sickness
- Long term sickness/persistent absence
- Capability/Qualifications
- S.98(2)(b)
- Conduct
- Breach of rules
- Violence
- Dishonesty
- Disobedience of instructions
- Conduct
- S.98(2)(c)
- Redundancy
- S.139 (1) ERA
- Untitled
- Redundancy
- S.98(2)(d)
- Statutory restriction on employment
- Driver
- Statutory restriction on employment
- S.98(1)(a)
- Some other substantial reason
- Changes to working conditions
- Some other substantial reason
- S.98(2)(a) ERA 1996
- The Reasonableness Requirement
- S.98(4)
- Potentially Fair Grounds for Dismissal
- S.92 ERA
- Duty to give written reasons
- Devis v Atkins
- Evidence found after UD cannot be taken into consideration- only info. known at the time of dismissal was admissible
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