| In Memory of Paul Newman |
[Sep. 27th, 2008|12:35 pm] |
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Most of what I wanted to say has already been covered. Paul was the epitome of talent, class and humanitarianism. He was a gifted actor and a founder of numerous charities. Watching him in action was like a life-changing experience. The Color Of Money, Hud, and Absence of Malice were all works of art. He was an ordinary man who accomplished many extraordinary things. He enriched the lives of millions of children in developing countries. Paul was a devoted husband and father as well. He also had a passion for racing, which gave him a refuge from the trappings of Hollywood. Whatever he touched turned to gold. They don't make them like him anymore. RIP Paul Newman |
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| (no subject) |
[Mar. 4th, 2008|06:57 pm] |
| [ | Current Music |
| | "As the years go passing by" ~ Jeff Healey | ] |
Jeff Healey (1966-2008)
Yea, there is nothing I can do
If you leave me here to cry
Yea, there is nothing I can do
If you leave me here to cry
You know my love will follow you
As the years go passing by
Well, I gave you all I own
That is one thing you can't deny
I gave you all I own
Honey, that is one thing you can't deny
You know my love will follow you
As the years go passing by
I am gonna leave it up to you
Baby, so long so long good bye
Said I am gonna leave it up to you
Baby, so long so long good bye
You know my love will follow you
As the years go passing by |
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| New Favorite |
[Feb. 10th, 2008|03:31 pm] |
| [ | Current Music |
| | "The Rest Will Flow" ~ Porcupine Tree | ] |
Tom Brady, #12 New England Patriots
Then out of darkness I found I could still feel
Something good
Out of the woods
Eyes closed
All of the rest will flow
One simple thing that I never could see
But now I know
All of the rest will flow
Stay with me my angel I found you
Now I don't feel low
All of the rest will flow |
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| Labour Law |
[Jan. 12th, 2008|11:16 am] |
| [ | Current Music |
| | "Simple Kind of Life" ~ No Doubt | ] |
Employers’ Implied Duties
An employers’ implied contractual duties can be placed into three main categories: (i) the newer implied terms which have quite recently been implied into the employment contract; (ii) the obligations regarding the provision of work and (iii) the obligations regarding remuneration. Regarding the newer terms, in recent decades, the courts have shown an increasing willingness to imply new terms, other than the trust duty, into the employment contract. An example of such a term is a term that the employer ‘reasonably and promptly affords employees an opportunity to obtain redress of grievances’. It is strongly arguable that the more general trust duty should be regarded as overarching all of these narrower duties. Rather than analysing an employer's duties in terms of a variety of narrow terms, it would be preferable to regard employers as bound by the trust duty, a duty that can be breached in a wide variety of different ways. The existence of a wide variety of overlapping terms, and the potential in every case for the court to invent a new implied term, has created uncertainty in the law. This was recognized in Levinson v Pickfords Ltd, in which Prophet J said that ‘to approach the employment relationship on the basis that there exists a wide range of implied terms would be to leave it in an unworkable state’. It was better to base decisions on the ‘one well-recognised term’ of trust and confidence. Recent cases in which actions by an employer have been held to breach the trust duty, which the courts had previously held to be breaches of narrower implied terms, suggest that the trust duty is likely to be seen in this way in the future.
Regarding an employer's obligations to pay its employees, Freedland has argued that there is a ‘principle of fair management and performance being applied to the construction of the relationship between performance, remuneration and benefits’. According to him, this principle is potentially applicable to fines or deductions for incomplete or defective performance; unilateral changes to terms and conditions of employment leading to a reduction in pay; entitlement to sick pay; the withholding of pay from employees engaged in partial industrial action; entitlement to salary increases; entitlement to bonuses and to eligibility to join benefit schemes. However, it is arguable that, rather than analysing the relationship between performance, remuneration and benefits in terms of Freedland's principle of fairness, it is more accurate to describe this area of the law as already governed by the trust duty. The trust duty has been extensively applied in this area. It has been applied to the entitlement to salary increases; the payment of bonuses; eligibility for benefit schemes; changes to work patterns causing a loss of wages and to pension provision. The current approach to the withholding of remuneration for partial industrial action, which is based on the idea that an employee is obliged to be ‘ready and willing’ to work, could also be replaced by an approach based on the trust duty. Under this new approach, an employer would be entitled to withhold remuneration whenever the employee, by refusing to perform a part of his contractual duties, was in breach of the trust duty.
As for an employer's obligation to provide work, there are two main issues which arise; whether an employer is obliged to provide work as well as wages, and the extent of an employer's right to lay off employees. Regarding the former issue, the courts have recognized that an employee might have a ‘right to work’ in some circumstances. There is much scope for applying the trust duty to this area of the law. Analysing the issue in terms of the trust duty, the question would not be whether the employee had a right to work, but whether the employer was in breach of the trust duty by failing to provide an employee with the opportunity to maintain a skill or maintain his reputation. It has, after all, already been held in Malik v BCCI SA that it can be a breach of the trust duty for an employer to damage an employee's reputation. The trust duty is also potentially applicable to an employer's power of lay-off. Applying the trust duty to an employers’ power of lay-off could resolve some of the contradictions in this area of the law. The law would be simply that an employer could not lay off an employee where to do so would seriously damage the relationship of trust and confidence.
Employees’ Implied Duties
Employees have traditionally been bound by a number of implied contractual duties, including a duty to obey lawful and reasonable orders, a duty of co-operation, a duty to exercise skill and care and a duty of fidelity. It is arguable that the trust duty already overarches all of these duties even if the courts have tended, despite its name, to view the mutual trust duty as applicable to employers rather than employees. Because the mutual trust duty seems to have originated in the employee's duty of fidelity it is natural to regard it as overarching that duty. And the generality of the trust duty means that the trust duty is also capable of overarching the other implied duties of an employee.
There is some evidence that the trust duty is being seen by the courts as overarching employees’ duties, in the context of the common law and the statutory remedy of unfair dismissal. Regarding the common law, the trust duty has been used to define the type of conduct by an employee, which justifies his or her summary dismissal. In Neary v Dean of Westminster99 Lord Jauncey, sitting as a Special Commissioner, said that ‘gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment’. Lord Jauncey said this after quoting the traditional test for wrongful dismissal in Laws v London Chronicle (Indicator Newspapers) Ltd and the definition of the trust duty in Lewis v Motorworld Garages. Lord Jauncey's test for wrongful dismissal was applied in Wheatley v Control Techniques plc and Briscoe v Lubrizol Ltd.
The trust duty has been used to define an employee's obligations, in the context of the unfair dismissal remedy, in two ways. The first way is the recognition by tribunals that a breach of the trust duty can be ‘some other substantial reason’, and so one of the potentially fair reasons for dismissing an employee. In Huggins v Micrel Semiconductor (U.K.) Ltd it was held that it was not an error of law for the tribunal to take this approach. The second way is that, in some cases, the reasonableness of an employer's decision to dismiss an employee has been held to depend on whether the employee was in breach of the trust duty. In Gough v Beechwood Music a dismissal was held not to be unfair because the employee had breached the trust duty by canvassing business for her own company among existing customers of the employer's business. And in Hack v Fernley Airport Services Ltd the EAT pointed out that an airport worker's conduct in damaging an aircraft was such that the tribunal could have relied on the trust duty as enabling the employer to dismiss the employee. The second way in which the trust duty has been applied to the unfair dismissal legislation is potentially very significant. If this approach were to be more widely adopted in future, the reasonableness of an employer's decision to dismiss an employee could depend on whether the employee was in breach of the trust duty, just as the decision whether an employee has been constructively dismissed depends on whether the employer is in breach of the duty. There is a compelling logic to holding employee and employer both to the same relational standard of trust and confidence. Furthermore, the band of reasonable responses test has been criticized, and the recent decision that it does not apply to cases where a public sector employer breaches an employee's rights under the ECHR, has perhaps placed its future in some doubt. |
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| DNA Evidence |
[Jan. 6th, 2008|12:43 pm] |
DNA testing is uncovering more defects in the criminal justice system. Charles Chatman has been cleared of sexual assault after serving nearly 30 years in prison. According to Chatman, a white woman was attacked by a black man, and he was convicted because he was "available." How do you get your life back? You can't really. No amount of compensation can make up for spending three decades of your life in a jail cell. Better late than never, I suppose.
DNA testing has freed 200 prisoners in the United States since 1989, including 15 on death row. This method can only exonerate individuals when there is biological evidence available for testing. Biological evidence includes hair, bones, teeth, tissue, blood, or other body fluids. The President's DNA Initiative was introduced in 2003 to increase the use of testing in the justice system. Congress has provided $1 billion in funding to this project. Texas, which is Charles Chatman's state of residence, leads the US in the number of prisoners released after being exonerated by DNA testing. The wonders of modern science! |
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