Archives: Misconduct

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Federal Court Overturns NLRB, Says Jimmy John’s Employees’ Disloyal Conduct Not Protected 

In a closely-watched case, on July 3, 2017, the U.S. Court of Appeals for the Eighth Circuit refused to enforce a National Labor Relations Board (“NLRB” or “Board”) decision in which the Board found MikLin Enterprises, Inc. (“MikLin”), owner of 10 Jimmy John’s franchises in the Minneapolis, Minnesota area, violated the National Labor Relations Act … Continue Reading

Whose lie is it anyway? Not for employer to decide if whistleblowing disclosure is protected

For a whistleblower to benefit from the statutory protections, his disclosure must be protected, i.e., be (usually) about the breach of a legal obligation and reasonably believed by him to be true and in the public interest.  If he deliberately lies or makes his disclosure only to advance his own interests or prejudice somebody else’s, … Continue Reading

In the post – FWC delivers mixed messages on dismissal for social media indiscretions

Following recent differing decisions of the Fair Work Commission (FWC) it seems that Australian employers must still tread a fine and uncertain line in determining whether employee misconduct on social media is a valid reason for dismissal. In the recent case of Stephen Campbell v Qube Ports Pty Ltd t/a Qube Ports & Bulk in … Continue Reading

He’s making a list, he’s checking it twice… the year’s best misconduct cases

As the Festive Season reaches its peak Down Under, we have taken a look back at the more ‘interesting’ cases of 2016 to help Santa prepare his Naughty or Nice List for Australian employers: First to be considered for Santa’s list is a labourer who, in the midst of a heated discussion, somewhat unchantably called … Continue Reading

Freedom of expression of employees or abuse, all depends on the context in France

In a recent case Cass. Soc. Sté Cegedim v. S, the French Labour Supreme Court upheld the decision of the Court of Appeal that an employee’s dismissal was void, on the ground that his freedom of expression had been violated. The employee had criticised the company’s management in an email sent to all his colleagues … Continue Reading

Workplace mediation in the UK – not at all a pussycat

Proponents of workplace mediation often stress its confidential and voluntary nature and the ability to fail to agree without there necessarily being any adverse consequences.  It is all about listening and rapport and trust, say those commentaries, making the whole process sound as cuddly and unthreatening as your favourite puppy. In fact, there are a … Continue Reading

Procedural leak sinks employer’s reliance on workplace drug tests

Although drug and alcohol testing is generally recognised in Australia as forming part of an employer’s armoury for managing its health and safety obligations, a recent Fair Work Commission decision has provided a salutary reminder that employers in Australia which fail to follow best practice when conducting such tests risk being on the wrong end … Continue Reading

Employees of one company can be whistleblowers at another – agency workers gain new protections

When it comes to explaining the importance of a new Employment Appeal Tribunal decision, there is nothing quite like a good story. However, the facts in McTigue -v- University Hospitals Bristol NHS Foundation Trust are rather dry and indeed nothing like a good story, so we shall settle instead for the (potentially really quite important) … Continue Reading

Employers beware – scope of UK vicarious liability law significantly extended

Almost exactly two years ago we reported on the Court of Appeal’s decision in Mohamud – v – WM Morrisons Supermarkets.  The Court found that Morrisons were not vicariously liable for a serious and unprovoked assault on Mr Mohamud by one of its employees in 2008.  This was because there was not a sufficient connection between … Continue Reading

French Supreme Court decides that failure to display workplace rules rendered dismissal unfair

A recent case before the French Supreme Court acts as a stark warning to employers of the importance of complying with the requirements in the French Labour Code to display their internal rules in the workplace. After the discovery of empty bottles of alcohol in the employees’ changing room, an employer required one of its … Continue Reading

Much ado about nothing in EU decision on workplace email monitoring

“Private Messages at Work can be Read by EU Employers” blared the BBC online yesterday in the sort of alarmist over-simplification normally best left to the Daily Mail. Mr Barbulescu worked for an unnamed business in Romania. He was instructed to set up a Yahoo Messenger account for business purposes only.  The company’s rules made … Continue Reading

When Judges strike back – UK Tribunal Sexual Misconduct Claimant exposes more than he intended

A particularly brutal little tale from the Employment Appeal Tribunal this month about what happens when you are sacked for deceiving your employer, bring an Employment Tribunal claim and then lie to the ET too. Mr G (not his real name, for reasons which will follow – his real name is Mr Roden, also for … Continue Reading

Sixth Circuit clarifies: Demanding a supervisor cease harassment is a protected activity

On April 22, the Sixth Circuit Court of Appeals issued a decision that clarifies that, for purposes of Title VII retaliation cases, an employee’s demand that a supervisor stop his or her harassing conduct constitutes protected activity under the statute. Affirming the findings of several district courts in the circuit, the appeals court held that … Continue Reading

UK Employment Tribunal awards £3.2m to woman called “Crazy Miss Cokehead” by colleagues

The woman who was called “Crazy Miss Cokehead” by her manager has been awarded nearly £3.2m by an Employment Tribunal for sexual harassment, reportedly including £44,000 for injury to feelings and a further £15,000 in aggravated damages. We originally posted a blog on this story in November 2013 http://www.employmentlawworldview.com/crazy-miss-cokehead-when-banter-goes-too-far/.  Following the liability hearing, the Tribunal … Continue Reading

Does sacking an employee for calling the boss a “complete d*ck” constitute unfair dismissal in Australia?

In a sequel to our blog last year concerning Australian employers using expletives towards employees (click here), the Fair Work Commission was recently faced with the converse scenario, this time being asked to rule on whether an employer was entitled to summarily dismiss an employee who had inadvertently sent him a text message in which … Continue Reading

Employer not driven to investigate all defences in UK disciplinary process

Some reassuring guidance for employers on the conduct of disciplinary investigations from the Court of Appeal last week – not new law but a clear and helpful analysis of just how far you have to go to investigate an employee’s defence. Mr Shrestha was employed by Genesis Housing Association as a support worker, a role … Continue Reading
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