Buy custom Termination of Employment Contracts essay

Introduction

A convention of working in an organization is a contract between a company and worker which is lawfully obligatory. Employment agreements are made up of a combination of express and implied contents. Essentially, a requisite agreement ought to illustrate proof for a free permission by both people and that by the time of making an agreement; the promise should be when both parties are in an accord. There must also be a visible object of the agreement between the parties entering into a contract. However, certain contracts due to lacking proper procedural undertaking as constituted under contractual laws get the illegal labeling.

On the other hand, termination of employment is the ending of the employment relationship between an employer and employee (Strevens, & Welch, 2013. Pp.4). Termination of employment usually occurs in three principal ways. The firs way is when the boss terminates service, second is when the manager completes a service and thirdly is when circumstances occur which end the employment opportunity. According to Susan M. Heathfield (2015), a human resource expert, termination of employment can be either voluntary or involuntary. Given the fact that voidable contracts allow for the withdrawal of only one party from an undertaking, cancellation will only be eminent upon either party fails on its part despite the fact that the contract involves an undertaking by the both parties to the contract to honor the contract in totality. Significantly, the purpose of this assignment is to illustrate in detail on a comparison platform between the dismissal and non-dismissal types of termination of employment contracts.

Dismissal in employment

Release can be termed simply as the annihilation of service by the boss, either for punitive action, joblessness or health rationales among others. Significantly, dismissal refers only to termination of employment by the employer, and although sometimes they are used interchangeably with termination, they have different meanings. That is because termination is a broader concept than dismissal since it also covers termination by employee and termination caused by other events (Hor & Keats, 2009. Pp. 11).

The contents of the Australia’s national workplace relations tribunal entail that a dismissal occurs normally in two ways. Their service has been completed at the initiative of the manager, or they have resigned their employment, but the termination was enforced by the conduct, or a course of conduct, by the owner. Various laws regarding employment across the world appreciate the fact that the employee has the authority to fire or not to fire the employer only that there are limits to such powers in that it is illegal to fire an employee on the basis of race, religion or complaint about illegal activities (Hor & Keats, 2009. Pp. 13-15).

 

That is in turn informed by the fact that once an individual becomes an employee there is a contract between him or her and the employer therefore, for any dismissal there must be good cause. However, that is different when it comes to at-will employers in that the employer are at liberty to fire them without reason and if any a false one (Turner, 2013 Pp. 9-11).

According to Simon Howard (2011), “although understanding dismissal from the above definition seems only to apply to unfair dismissal claims, it provides a good short statement of how terminations can occur” (13). From Simon Howard’s analysis, therefore, it can be said that understanding what dismissal is matters since it can give a thorough understanding of how dismissals occur and even the remedies available for the different forms of dismissal (Howard, 2011. Pp.17).

Non-Dismissal Termination of Employment Contracts

Dismissal termination of employment contracts essentially emanates from the employer. Non-dismissal termination of the employment contract would (Lewis, & Sargeant, 2015. Pp.7). The employee initiates such termination without any interference from the employer, and it may manifest in several of these instances; Resignation, the death of the employee, lapse of a fixed-term contract period, retirement, termination by operation of law and abandonment (Lewis, & Sargeant, 2015. Pp.7).

Resignation

The resignation has been defined as a conscious decision by an employee to end his or her employment.  It occurs where the employee decides not to stay further in the employment relationship and it is done through notice to the employer (Willey & Murton, 2012. Pp. 14). Different jurisdictions have different requirements for a resignation to be held properly tendered. In Canada, for instance, the employee gives the employer written notice at least two weeks before resigning, and the employee’s notice of resignation is to take effect during the statutory notice period.

Additionally, termination of an employment contract can be done through an agreement between the employer and the employee and it is often referred to as Termination by Mutual Consent (Willey & Murton, 2012. Pp. 15). This has also been categorized as a form of resignation.  Because a departure is generally considered a unilateral act the law allows the employee also to retract the resignation but only where ‘special circumstances exist relating to the context within which the decision to resign was taken’ and the withdrawal must be within a reasonable time. 

A majority of factors that influence termination are as a result of the differences in the labor market regulations that are also brought about by the international differences in the labor outcomes. It is necessary that the conservative governments relook into their labor laws with a view to reducing the restraints on the different organizations and companies’ capability to hire and fire (Bertola, & Boeri, 2000). But the one crucial thing is the fact that the employment protection has no constraining effect on the HRM practices including as layoff, hiring, unemployment inflow and outflow, and job creation and destruction. Labor protection is hysterical about the role played by employment protection in determining aggregate labor outcomes (Bertola, & Boeri, 2000).

Death of the employee/ employer

The Treasury Board of Canada Secretariat enumerates that either the job owner or worker can end an employment, as a result, of death. The terms of service will be terminated if either the boss or the employee dies. This was stated in the case of Stubbs v Holywell Rly Co. (1867) LR 2 Exch 311 and Graves v Cohen (1929) 46 TLR 121.

Termination by operation of law

Where the subsistence of an employment relationship is dependent on some set provisions of law, and it fails to meet set such criteria as required by law, and then the job automatically terminates. That was illustrated in the case of Barnes by v Kensington and Chelsea and Westminster Area Health Authority (Teaching) 1981 ICR 615 where the court held that an employee’s contract of employment had automatically terminated upon the loss of registration as a medical practitioner.

Termination by lapse of fixed time/task

Where the employment contract provided that the employment relationship was to subsist for a certain period, or until a certain task is completed, then the employment is automatically terminated upon the lapse of such time or the performance of such task as required under the employment contract (Willey & Murton, 2012. Pp. 17).

Termination by abandonment

Abandonment is a situation where an employee fails to attend work without communication or explanation for the failure to attend and is deemed to have voluntarily repudiated the employment contract.

In Buck v Tinsley’s Mower & Chainsaw Professionals (2001), it was held that abandonment cannot be assumed unless there is sufficient inquiry into the circumstances of an employee’s absence.

Dismissal types of termination

The types of dismissal termination are dismissal via notice; employee’s performance is substandard and when an employee’s position has become redundant. Thus, the employer is required to state clearly the period that the dismissal will become operative, and it has been held that the most critical consideration in determining reasonable notice is how long it will take the employee to find equivalent employment. This was held by the Australian court in the case of Rankin v Marine Power International Pty Ltd (2001) 50 AILR.

Where the employer terminates the employment contract by way of notice, it is required that he pays up the funds he would have paid the contract of employment who would have completed the task (Taylor & Emir, 2015. Pp. 23). This was held in Furey v Civil Service Association of WA, where the court found that payment instead of a termination notice must include the superannuation that the employee would have been entitled to if the notice period had been worked instead of being paid out. Where a contract is for a fixed term or task but makes no provision for early termination, the courts will not imply that the contract is terminable on reasonable notice, but will hold that the contract should have continued until the expiry of the fixed term or task (Hor & Keats, 2009. Pp. 19).

The courts have held that there needs to be a sensible notice for a extinction to be looked at as legally binding. But in cases whether the notice of removal from office is rational, it would depend on the situation of each issue (Taylor & Emir, 2015. Pp. 24). An example of the case scenario is with the cases of Stubbs v Vestry of St. John’s Church and Bartlett v Hipkins, where the judges perceived that since the agreement of service contained no fixed term of labor, they could accordingly be sacked upon logical notice being offered. In considering the reasonable notice period, a court will consider four factors i.e. the employee’s age, the employee’s length of service, the character of employment (employee’s skill set and position) and availability of similar employment (Taylor & Emir, 2015. Pp. 25). These factors are known as the “Bardal factors” deriving from the Canadian case of Bardal v Globe & Mail Ltd (1960) 24 D.L.R (2d) 140.

Summary Dismissal

Summary dismissal can perhaps be said to be dismissal without notice. This may occur when an employee commits an act of serious misconduct that is sufficient to justify instant dismissal (Mwalongo, 2012. Pp. 8). Where the circumstances are such as to justify instant dismissal, then the law does not require notice to be given to the employee.

In the cases where the synopsis removal from office takes place, the boss is obliged to pay the worker up in anticipation of the time of the release only. In case of Haslem v GM Packaging (UK) Ltd [2014] ALL ER, the worker was sacked after it was noted that he was having sexual relations in the place of work with a coworker after work. It was established that the abstract removal from office was officially authorized.

Circumstances that may avail to an employer the right to summarily dismiss an employee without notice include misconduct, negligence and neglect by the employee. Furthermore, summary dismissal can avail to the employer either within the contract of employment, a statute, an award or any instrument governing the employment relationship (Hor & Keats, 2009. Pp. 11).

According to the case of Adami v Maison de Luxe Ltd (1924) CLR 143 at 151, it was held that when examining the summary dismissal due to bad behavior, certain aspects have to be looked at. Significantly, the character of the worker must amount to a fundamental contravene of the relation and incompatible with its continuation. As regards to carelessness, the court in Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 at 267 perceived that slackness will sum to a ground for summary dismissal only if the act constitutes a very serious case of overlook.

Constructive Dismissal

It is generally accepted that constructive dismissal occurs where the employer’s actions or words result in the employee effectively having no reasonable choice or alternative but to terminate the employment contract . Furthermore, according to Hor & Keats, constructive dismissal is regarded as termination rather than resignation since the employee does not have a choice in the matter (2009. Pp. 13).

In the case of Russian v Woolworths (SA) Pty Ltd, the court held that where the boss acts in a way that results to a refutation of the service agreement and the employee acknowledges the denial and dismisses the service contract, this results to a productive removal from office (Hor & Keats, 2009. Pp. 20). The above rationale applies to the manager unilaterally demoting the member of staff or makes important changes to his or her working conditions as a way of doing what is right legally.  

The approach by the Court to instigate down the test to settle on whether positive dismissal has taken place noted that the approach is not to ask whether the employer’s conduct was unfair or unreasonable. What needs to be asked is whether the employer’s character was such that the boss was responsible of an infringement by going to the root of the contract. The other perception that can come into play is whether he has demonstrated a purpose to no longer be hurdled by the agreement (Hor & Keats, 2009. Pp. 24).

 In some instances, it has been perceived that the approach of changing an employee’s work tasks may comprise of constructive removal from office. This was noted in the case of Jaya Jusco Stores Sdn Bhd v Ganesan a/l Rajoo . Apparently, the breach constituted of implied tasks by the company, constructive dismissal will be looked at as having occurred as was held in the case of Aik Poh Industries Sdn Bhd case.  It is true as in the case of Aik Poh Industries Sdn Bhd was ruled by the court that where the worker has been mortified, intimidated and battered, then there is violation of an implied term (RADZI, 2008Pp. 34-37). The term in question goes to the root of the contract of employment which is made up of constructive dismissal.

Conclusion

As a summary, it is clear that the difference between the dismissal and the non- dismissal types of termination of employment depends on the point of origin of the termination process. The type of termination, therefore, depends on who between the employer and the employee initiates the dismissal process. While the dismissal type of termination is initiated by the employer whether by notice to the employee or without notice, the non- dismissal type of termination is initiated by the employee. Furthermore,, sometimes the non-dismissal type of termination may also be put into practice by circumstance or any other factor beyond control of the employer, but directly affecting the subsistence of the service connection.

However, the line between dismissal and non- dismissal types of termination is not always clear as can be evidenced in both constructive dismissal and termination of employment by mutual consent. Although constructive dismissal is viewed as a form of dismissal, it is not dismissal in the true sense as the employer does not directly initiate the termination process which is instead initiated by the employee through circumstances of the employer’s creation. On the other hand, termination by mutual consent has the employer’s input hence problematic in categorizing it as a type of non- dismissal termination. This is because while the non- dismissal termination traditionally excludes involvement of the employer, termination by mutual consent sees the input of both the employer and employee.

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