Archives: Termination

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The Japanese layoff that didn’t “fly”

As I wrote in this space last year, layoffs for economic circumstances exist under Japanese law, but are exceedingly difficult to achieve without constituting wrongful dismissal. One major international airline is learning this the hard way. Three years ago, the airline terminated three Japan-based employees in connection with the closing of its call center in … Continue Reading

Looking into disciplinary investigations – EAT’s lessons on when enough is enough

It is a basic plank of a fair disciplinary dismissal that it be preceded by a reasonable investigation.  But what is that, exactly?  How much detail must you include in your enquiry, how many witnesses must you grill, how far back do you have to go, how far must you challenge or test the evidence … Continue Reading

Seventh Circuit Explains: The ADA Is Not A “Medical Leave” Statute

On September 20, 2017, the Seventh Circuit in Severson v. Heartland Woodcraft, Inc. held that a long-term leave of absence is not a reasonable accommodation under the Americans with Disabilities Act (“ADA”).  As we all know, the ADA prohibits employers from discriminating against “qualified individuals” with disabilities, defining such individuals as applicants or employees who, with … Continue Reading

Two US Federal Agencies disagree as to whether Title VII as a matter of law, reaches sexual orientation discrimination

This past May, 2017, The US Court of Appeals for the Second Circuit granted en banc (meaning all the judges on the Second Circuit will hear the case instead of a three-judge panel) a review in Zarda v. Altitude Express, the case of a New York skydiving instructor who was fired from his job because … Continue Reading

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
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