Dismissal for gross misconduct
There are several reasons why a contract may be terminated. The two most common are voluntary resignation (when the employee decides to leave the company he or she works for, for whatever reason) and dismissal. The termination of temporary contracts is another cause that deserves a separate mention and we have analyzed it in an entry that can be seen by clicking here.
If we are faced with a dismissal, it may have been fair, unfair or null and void. Depending on how it is classified, its consequences (amount of compensation or reinstatement) will be different. Let us look at the three types of dismissal in detail.
It is the dismissal that occurs when there is one (or more) justified cause(s) alleged by the company for the dismissal. It can be a disciplinary dismissal, motivated by a serious and guilty breach (not fortuitous) of the worker, or a dismissal for objective causes, which will be given when the economy of the company presents losses or decrease of income, when there are organizational changes in the company for which the work provided by the dismissed person is not necessary, or when there are changes in the production of the company.
Thesis on unfair dismissal in mexico
Workers in Australia have rights and obligations related to their employment, governed by a variety of laws, covering areas such as minimum terms and conditions, occupational health and safety, discrimination and superannuation. The main source of regulation comes from the Fair Work Act 2009 (FW Act 2009 (Cth)). Therefore, it is vital for anyone seeking to do business and hire people in Australia to have a solid understanding of the Australian employment framework in order to minimize any risk to the ultimate success of their business.
Modern concessions are industry and occupation based instruments that establish a minimum safety net of terms and conditions that complement the NES. Modern concessions deal with:
Business agreements cannot exclude or undermine the minimum terms and conditions of employment set out in the NES. An employment contract for specific employees can operate alongside enterprise agreements, but can only supplement (not undermine) the terms and conditions of an enterprise agreement.
The employment relationship is the rendering of a subordinate personal work to a person through the payment of a salary; and the individual employment contract is the one by virtue of which a person is obligated to render a subordinate personal work to another person through the payment of a salary.
Unjustifiably dismissed workers may consider reaching a conciliatory agreement with the employer either privately, before the labor authorities such as the Secretaría del Trabajo y Previsión Social or before the Junta de Conciliación y Arbitraje (Conciliation and Arbitration Board). If the parties do not reach a conciliatory agreement, then the employee may go before the Conciliation and Arbitration Board within the term of two months following the day on which the unjustified dismissal occurred to exercise the actions for unjustified dismissal against the employer.
In relation to the issue of unjustified dismissal, both the employer and the employee frequently have doubts regarding its effective configuration as well as the rights or indemnifications that correspond to the employee. In this section we present some answers to frequently asked questions that both the employee and the employer have in relation to unjustified dismissal.
Carlos Francisco García Salas, in his capacity as a citizen, filed an action of unconstitutionality against Article 62 (numeral 6 of literal A) of the Substantive Labor Code, considering that the rule contemplated therein disregards the principle of equality (Art. 13, CP), the right to work (Arts. 25 and 53, CP) and the right to due process (Art. 29, CP). The action was admitted for study by Magistrate Diana Fajardo Rivera. 6.
6. Any serious violation of the obligations or special prohibitions incumbent upon the worker in accordance with Articles 58 and 60 of the Substantive Labor Code, or any serious misconduct qualified as such in collective bargaining agreements or conventions, arbitration rulings, individual contracts or regulations.
The plaintiff considers that there are two reasons for which the accused norm is contrary to the Constitution. For violating the right to equality, on the one hand, and for violating the rights to work and to due process, jointly.
|| based on the scope given by the Supreme Court of Justice to the part of the challenged norm, it is concluded that while the commission of one of the conducts contained in the Substantive Labor Code allows the judge to make an assessment of the seriousness thereof, in the case of misconduct determined as serious by the internal labor regulations, the judge is not allowed to assess the real seriousness of the conduct, thus advocating an unjustified differential treatment, based on the instrument in which the just cause for dismissal is contained.