tag:blogger.com,1999:blog-1662432057562451953.post5174025758580392384..comments2013-09-27T01:09:51.924-04:00Comments on Norfolk Law Talk: Unconstructive DismissalUnknownnoreply@blogger.comBlogger2125tag:blogger.com,1999:blog-1662432057562451953.post-18684428615953385612010-08-30T18:09:37.272-04:002010-08-30T18:09:37.272-04:00Thanks for the comment, Chris.
I understand where...Thanks for the comment, Chris.<br /><br />I understand where you're coming from on the Master/Servant issue, but I don't think it's as bad as you believe these days. (Or, alternative, I think that what you're suggesting requires reform of the base principles of our economy writ large, and not just employment law.)<br /><br />I've seen circumstances, even in my own files, involving allegations of insubordination for not following directions which were arbitrary and counter-productive. And sometimes it's too hard to get in to challenge the legitimacy of these directives. The directive has to be (a) illegal, (b) issued for illegal (read: discriminatory) reasons, (c) unsafe (OHSA), or (d) sufficient to meet the test of constructive dismissal before you can really justify a refusal to follow it.<br /><br />But the threshold for cause is high. I would be loathe to recommend a for-cause termination on the basis of insubordination for refusal to follow a truly trivial directive.<br /><br />In the abstract, there are two questions: Who gets the benefit of statutory silence, and - with that in mind - what protections do we need to build for the other side?<br /><br />You want to change the answer to the second question. But if you modify the presumption of employer authority, then you also have to modify all the other protections which have been built in for employees - and these days, there are a lot.<br /><br />I'm happy to maintain current presumptions, and I think that constructive dismissal provides a lot of protection to employees...but my point is that this protection is undermined when the Courts are prepared to say that there *was* constructive dismissal but you *still* shouldn't have quit.Dennis Buchananhttps://www.blogger.com/profile/02338198640943823828noreply@blogger.comtag:blogger.com,1999:blog-1662432057562451953.post-11240109667670918622010-08-30T12:50:26.935-04:002010-08-30T12:50:26.935-04:00I have to agree that a substantially changed job c...I have to agree that a substantially changed job cannot possibly meet the standard of equivalent replacement employment. I think the analysis needs to be: Did the employer irrevocably damage the employment relationship with the altered terms? (We apply this standard to employee misconduct, why not to employer misconduct? - I know in some human rights cases it seems to be applied to employer misconduct.) <br />It all comes back to a fundamental flaw in employment law - which you tacitly bring up by mentioning the concept of insubordination: employment law is still rooted in master-servant law. The employer is treated like a lord: not the sovereign, but an authority above the peasants nonetheless. It can expect loyalty subordination. Employment law needs to be reformed to remove all these remnants of a hierarchical society that should no longer exist if we are actually committed to democracy.Chrisnoreply@blogger.com