Employment Law- Unfair Dismissal

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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
      • Who proves what?
        • CLAIMANT
          • Establish
            • Employee
            • Sufficient continuity of employment to claim
            • That they have been dismissed
        • Respondent (employer)
          • Reason for dismissal
          • That the reason is potentially fair
        • E.T determines whether the dismissal is fair or unfair
    • 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
    • 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
    • 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
    • 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
          • S.98(2)(b)
            • Conduct
              • Breach of rules
              • Violence
              • Dishonesty
              • Disobedience of instructions
          • S.98(2)(c)
            • Redundancy
              • S.139 (1) ERA
              • Untitled
          • S.98(2)(d)
            • Statutory restriction on employment
              • Driver
          • S.98(1)(a)
            • Some other substantial reason
              • Changes to working conditions
      • The Reasonableness Requirement
        • S.98(4)
    • 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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