A more recent version of these Unfair Dismissal Model Answer notes – written by University Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Employment Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Unfair Dismissal Model Answer STEP 1: ELIGIBILITY??
STEP 2: DISMISSAL?
STEP 3: TIME LIMIT STEP 4: POTENTIALLY FAIR REASON?Burden of proof on employee Must be an employee; generally requires: o Employee to be under an obligation to perform the contract personally (can't delegate to someone else) o Mutuality of obligations (employer must be under obligation to offer work; employee must be under obligation to accept it) o Employee much be subject to control of employer (hours, place of work etc. prescribed by employer) Employee must not be in an excluded class; so not: o Armed forces o Police officers o Share fishermen Employee must have requisite period of employment prior to dismissal by the 'effective date of termination (EDT); so: o EDT =
? Terminated by notice; EDT = date notice expires
? Terminated without notice; EDT = date termination actually takes effect
? Fixed term or specific task contracts EDT = date contract expires o 1+ years continuous employment for employees whose employment commenced before April 6 2012 o 2+ years continuous employment for employees whose employment commenced on or after 6 April 2012 Burden of proof on employee Either: o Expiry and non-renewal of fixed term contract o Completion of a specific task o Actual dismissal o Constructive dismissal - repudiatory breach by employer which employee accepts and in response to which employee resigns within a reasonable time 3 months from EDT Burden of proof on employer The employer must show that the main reason for the dismissal was one of the five permitted reasons set out in 98(2) ERA 1996: o Employee's capability or qualifications to do the work
? Employer argues that the employee isn't capable of doing the job because he lacks capability or he is too ill; the employer must show in the case of the former that such a qualification is essential in order to do the job o Employee's conduct
? Includes disobedience to orders, dishonesty, breach of the duty of fidelity, poor timekeeping and misconduct outside
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