EMPLOYMENT LAW
Cao Xuân Phong
EMPLOYEE INDEPENDENT CONTRACTOR
Be obliged to accept work offered and the Not required to accept or to be offered
employer must provide work work.
Be subject to more control over how they Will likely have considerable freedom over
perform their work the hours they work per week or per
month and set their own schedule
May be subject to restrictions around Would, in theory, be able to hire someone
working for other people during and after in their own right, or get someone else,
“
their employment i.e. an employee of theirs, to do the work
Salary (regularly paid based on Be paid per job or per certain time (lum
hour/day/week/month rate) sum payment)
Employer pays tax and insurance Be responsible for own tax and insurance
Must work exclusively for their employer, Can work at the same time for other
at a location and for a time period company
determined by the employer
Employer provides equipment Use own equipment
Employer bears risks and vicarious liability Bear own risks
Contract of service Contract for services
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A medical doctor working
for a public hospital
A is driver of special vehicle who
conducted surgical
worked for a B company only in
operation negligently. The
delivery of liquid concrete to
patient sued Ministry of
A says he is self- building sites. He uses his own
Health for damages. Who
employed and working vehicle and be responsible for its
should be responsible?
for B as independent maintenance, but paints
contractor. B can company’s colors on his vehicle
dismiss A, decide and wore company’s uniform. He
where A should work, A hired crane with driver appoint substitute driver in case
direct A how to perform from B. Contract writes it is needed. B company pays
certain work and that driver should be A’s him on basis of mileage and
provide tools for A’s employee during the quantity of delivered concrete,
work. A was injured in a contract implementation, without tax deduction.
working accident and although B appoints driver Is A a B’s employee or an
sued B for remedies. B and still pays for his work. independent contractor (self-
says that because he is Who should be employed)?
not employer, he is not responsible if accident
liable. takes place?
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SOURCES OF IMPLIED TERMS
OF EMPLOYMENT CONTRACT
(CONTRACT OF SERVICE)
Custom and Practice
Works and
Staff Rules
Collective Agreements
Statute
Common Law Rights and Duties of Employers and Employees
Business Efficacy
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OF EMPLOYER
OF EMPLOYEE To pay employee
COMMON
To work with reasonable
LAW DUTIES
(Wage and remuneration)
Not to undermine the trust
care and skill and confidence of
To obey reasonable orders employee
Ottoman Bank v Chakarian
Isle of Wight Tourist Board v
Walmesley v UDEC
Coombes
Morrish v Henlys (Folkestone) Ltd
To act in good faith To provide safe working
Dalton v Burtons Gold Medal conditions
Biscuit Co. Ltd (competent staff; safe premises,
plant and equipment; safe system
of work)
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Some statutory duties of
employer
Working time
• Time off work
• Legitimate leaves
• Maternity rights
Health and safety:
“
Provide and maintain plant and systems of
work which are safe and without risk
Make arrangements to ensure safe use,
handling, storage and transport of
articles/substances
Provide adequate information, instruction,
training and supervision
Maintain safe places of work with adequate
access in and out
Provide safe and healthy working environment
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TERMINATION OF EMPLOYMENT CONTRACT BY NOTICE
Period of Notice must not be less than the statutory minimum
Notice may be given without specific reason, unless the contract requires otherwise
If there is specific circumstances prescribed, other reason is not acceptable
MINIMUM NOTICE PERIOD
“
From 1 month to 2 year: 1 week
From 2 years to 12 years: each year entitle the person giving notice 1 week
More than 12 years: at least 12 weeks
SUMMARY DISMISSAL
Employee is dismissed without (appropriate) notice. This is also called wrongful dismissal.
It may by justified if employer can prove that the employee was guilty of gross misconduct
(theft, fraud, violence or drunkenness, reckless behavior or willful refusal to obey reasonable
orders
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Dismissal which can not be
justified as fair by employer
UNFAI
R
“
DISMI
SSAL
Eligibility to claim: Burden of proof
Continuous employment for at Employee must prove the fact of
least 2 years the dismissal
Claim should be brought within Employer must prove the
3 months of the termination dismissal was fair
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Continuous
employment
This is applied to both full-time and part-time
employment.
Employment is continuous despite following
interruptions:
- Sickness
- Pregnancy and maternity leave
- Temporary lay-offs
- Holidays
- Change of job with the employer or its associate
- Takeover by a new employer
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Burden of proof by
employee
Employees must prove that they have been dismissed.
ACTUAL DISMISSAL
Employer tells employee that he or she dismissed
DISMISSAL
CONSTRUCTIVE DISMISSAL
Employee feels forced into resignation by employer’s
behavior
DEEMED DISMISSAL
Employer refuses to permit employee to resume his/her job
after maternity leaves
Cases of no dismissal: 1. Failure to return to work after leave;
2. Completion of purpose of employment; 3. Resignation.
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Burden of proof by
employer
Employers must prove that they have proper reason for
dismissal.
PROPER GROUND FOR DISMISSAL
Lack of appropriate qualification/capability to do the job
Employee’s conduct
Employee was redundant: job ceased to exist
PROOF
Continuance of employment would result in illegality
Any other substantial reason
FAIRNESS OF DISMISSAL
Appropriate procedure must followed
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Thank you!
Questions and Comments
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