Archives: Termination

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Are Employers Going to be Required to Accommodate Medical Marijuana Use?

State-registered medical cannabis patients may now sue a private employer for discrimination under Massachusetts’ law if they are fired for their off-the-job marijuana use, according to landmark ruling issued July 17, 2017, by the Massachusetts Supreme Judicial Court. Citing the Massachusetts Medical Marijuana Act, the court states that patients shall not be denied “any right … Continue Reading

Justification of Redundancy Following Disability-Related Absence

If because of your disability you are absent from work and if because of that absence your employer discovers that it doesn’t actually need you, does your resulting redundancy arise from your disability?  This is important because Section 15 Equality Act 2010 says that if A treats B unfavourably “because of something arising in consequence … Continue Reading

Unclear and present danger – incorrect use of “Independent Contractor” arrangements may have expensive consequences

The ever-vexed question of whether a worker is an employee or independent contractor has once again come before the Australian courts. The recent decision of Balemian v Mobilia Manufacturing Pty Ltd & Anor provides a reminder to employers of the potential financial ramifications of getting this wrong.… 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

EAT says even expired warnings can be taken into account when dismissing an employee. Sometimes.

In Stratford v Auto Trail VR Ltd the EAT held that an expired warning can be taken into account when considering whether a dismissal was fair or unfair under s98(4) Employment Rights Act 1996. Mr Stratford had the sort of disciplinary record which requires real commitment (17 incidents in less than 13 years). The most … 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

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

2nd Circuit Sharpens Its Claws – Broadening Scope of Cat’s Paw Theory

Earlier this week, the Second Circuit Court of Appeals revived plaintiff Andrea Vasquez’s wrongful termination and retaliation lawsuit against her former employer, holding that under the “cat’s paw” theory, the retaliatory intent of any company employee – not just supervisory personnel – can be imputed to the company. The “cat’s paw” theory traces its roots … Continue Reading

Recent redundancy exercises – learning points for HR, Part 1

Large-scale redundancies may not be happening (fortunately) to the same extent as in the aftermath of the financial crash of 2008 (and it’s too early to talk meaningfully about the possible implications of Brexit), but we are still often asked to advise clients in connection with smaller-scale redundancy exercises, often arising as a result of … Continue Reading

Two Recent Federal Court Decisions Explore the Limits of the At-Will Employment Doctrine

Two recent federal appellate decisions suggest that even the hallowed employment at-will doctrine is not without its limitations. The first is Swindol v. Aurora Flight Sciences Corp., a case decided by the Fifth Circuit Court of Appeals on August 8, 2016. The employee in that case was fired for parking his truck in the company … Continue Reading

Two Timing Employee Caught in the Act – Uber Unfortunate!

An employee of West Australian Newspapers Limited (WAN) who moonlighted for Uber was caught in the act when, one Saturday night, he picked up a WAN manager. Despite being well and truly busted, the employee (who worked night shifts as WAN’s newspaper machinist) denied having any affiliation with Uber, saying that his wife had the … Continue Reading

Tokyo District Court rules that “US-style” dismissal is invalid

Article 16 of the Japanese Labour Contracts Act provides that “If a termination lacks objectively reasonable grounds and is not considered to be appropriate in general social terms, it is treated as an abuse of rights and is invalid”.  Obviously the terms “objectively reasonable grounds” and “appropriate in general social terms” are ambiguous but here … Continue Reading

Bad medicine – the dangers of contacting an employee during sickness absence

It is a common issue facing employers; you want to start or take next steps with a grievance or disciplinary investigation. To do the right thing you want to meet with the employee to discuss your concerns but the worker is on sick leave or goes sick, often citing work-related stress.  Can you contact the … Continue Reading

Three ways to dismiss employees in Japan

If we were to list the “frequently asked questions” by multinationals doing business in Japan, the first question on the list might be “how do we dismiss employees?” The short answer is “with extreme care,” as Japan is famous for its “lifetime employment” system, and the law here is very protective of employees. Many multinationals have tried to fire … Continue Reading

Gardening Leave – Avoiding the Thorns!

In the absence of any right at common law or under Australia’s Fair Work Act 2009 (Cth), the general rule is that gardening leave must be conferred by an express power in an employment contract.  In a remarkable decision by the Victorian Supreme Court in Australia it was held that the employer’s power to direct … Continue Reading

Practical tips for settling injury to feelings claims

Back in 2014 we posted a piece on Moorthy –v- HMRC http://www.employmentlawworldview.com/taxing-times-for-uk-discrimination-claimant/, a case looking at the taxable status of payments to employees for injury to feelings caused by unlawful discrimination. Historically there had been an unspoken understanding that such compensation could be paid tax free, on top of the usual £30,000 allowance for termination … Continue Reading

Can “Child’s Pose” Relieve Bikram Yoga Guru’s Stress After His January 25 California Court Double-Whammy?

I first encountered Bikram Choudhury 10 years ago (okay more like 15, but who’s counting) at his Bikram Yoga College on La Cienega Blvd. in L.A. when trying out his quintessential hot yoga class. He was memorable, parading around in Speedo-like short-shorts on a small stage in front of the class, shouting yoga commands. Given … Continue Reading
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