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"Unconscionable New Offences"

Employment and Discrimination Law

"Unconscionable New Offences"

Postby YorkshireBloke » Mon Sep 18, 2017 6:33 pm

Hi,

Having a Sad Life where I clearly don't get out enough, I have become interested in how Implied Terms in a contract of employment can be made explicit and thereby more helpful to employees: i.e they don't transgress rules that they "haven't been told". :oops:

This follows on from the post about disciplinary offences not being defined; thought it needed a new thread.

So. Could "Policies" clearly stated become a better guide to implied terms IF THE UNDERLYING IMPLIED TERM was "linked" to it directly??

The Company Social Media Policy forbids any posting that links the Company to any behaviour that the Company in its opinion brings the Company into disrepute. This flows from the implied term of Duty of Fidelity

This would allow firms to be specific enough to make sense to regular folks but also help point to the wider concept underpinning the Policy.

I believe most employees and very many employers do not appreciate the "power" of the implied terms in Contracts.

Boring enough to get responses? Even being "flamed" for nievete would get some discussion going! :twisted:

YB
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Re: "Unconscionable New Offences"

Postby atticus » Mon Sep 18, 2017 8:39 pm

Can you clarify your question please. I am struggling to understand it.
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Re: "Unconscionable New Offences"

Postby YorkshireBloke » Mon Sep 18, 2017 8:57 pm

Hi atticus,

Not so much a question, more a search for informed opinions on the way we do things in employment law... I thought this might be the place to get such thoughtful insights...

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So, again: are implied terms understood by non-lawyers? Would a greater understanding help practically in the Big Wide World?

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Re: "Unconscionable New Offences"

Postby atticus » Mon Sep 18, 2017 9:17 pm

Not being a non-lawyer, I may not be the best person to answer the first question. The answer to the second is unlikely not to be "yes".

There are, however, relatively few implied terms in employment contracts.

The other thread was not about implied terms. Rather, it was about the fact that employment contracts do not generally give an exhaustive, defefinitive, closed list of what will be considered to be gross misconduct.
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Re: "Unconscionable New Offences"

Postby 3.14 » Mon Sep 18, 2017 9:27 pm

atticus wrote:Rather, it was about the fact that employment contracts do not generally give an exhaustive, definitive, closed list of what will be considered to be gross misconduct.
Nor will they.
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Re: "Unconscionable New Offences"

Postby atticus » Mon Sep 18, 2017 9:28 pm

Here is a decent short article about implied terms in employment contracts. I hope it helps a little.
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Re: "Unconscionable New Offences"

Postby dls » Tue Sep 19, 2017 1:25 pm

As Atti suggests there are not a whole load of terms implied into employment contracts. It is important to understand that whilst this particular clause may not be explicit, it is the absolute basis of an employment contract. It is what makes and employment contract different from other contracts. Employment is a form of personal relationship between employer and employee. Each needs to be able to place trust and confidence in the other, and without that characteristic the employment relationship will fail.

An act of employer or employee which undermines that fundamental is said to be in breach of that implied term of employment. If teh employee acts in such a way that the employer cannot be expected to continue any trust in the employee then, in general, the act forming that breach will be gross misconduct entitling the employer to terminate the contract forthwith. The term is reciprocal in nture. So that, where an employer acts in a way which undermines the trust and confidence of the employee, the employee is entitled to resign out f hand and to claim unfair constructive dismissal - though I emphasise that such claims can be difficult to pursue.
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Re: "Unconscionable New Offences"

Postby atticus » Tue Sep 19, 2017 1:43 pm

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