Day 137 - 19 Jun 95 - Page 62


     
     1        right to terminate an individual for any reason.
     2
     3   Q.   So that is a principle of almost an unfettered freedom on
     4        either side?
     5        A.  That is correct.
     6
     7   Q.   Tell us over the last 100 years, but a bit more recently,
     8        in particular, that principle has been applied by the
     9        American courts?
    10        A.  That principle has been eroded significantly to the
    11        point where in a legal environment -- I think you are
    12        asking me that ---
    13
    14   Q.   Yes.
    15        A.  -- you cannot terminate an individual without just
    16        cause.  The burden of proof is on the employer to prove
    17        just cause.  If I might -- I do not know if you want me to
    18        explain any further as to the reason why employers put this
    19        language in?
    20
    21   Q.   I am coming to that in a moment but I want to take it in
    22        stages because to an English lawyer this seems very clear
    23        though, evidently, it is not as clear as one might think it
    24        is.  The courts have eroded the principle and, in effect,
    25        now imposed -- I am summarising your evidence so far -- on
    26        the employer an obligational burden to show just cause?
    27        A.  That is correct.
    28
    29   Q.   Does that mean that the employee does not have to give some
    30        special ground of complaint in his claim for wrongful
    31        dismissal?
    32        A.  The ground could be as simple as:  "I am a white male"
    33         -- and I am referring, in fact, back to something I think
    34        I had mentioned earlier ---
    35
    36   Q.   Yes, you did.
    37        A.  -- "I am a white male and women are treated better than
    38        I was treated".
    39
    40   Q.   Unless the employer puts up a good answer to that and
    41        says:  "No, you were sacked because you had your hand in
    42        the till", or whatever it is, the case would go against the
    43        employer, would it?
    44        A.  Absolutely.
    45
    46   Q.   Yes, I see.  Why then is there any point in expressing this
    47        ancient principle in a document such as this?
    48        A.  Because something happened within American
    49        jurisprudence in the labour area about 12 years ago --
    50        I may be off a little bit on the dates -- the courts began 
    51        to infer that absent specific language saying that 
    52        employment is at will, they began to infer lifetime 
    53        employment, and took away the right of an employer to
    54        determinate someone even for just cause.
    55
    56        What the courts and the scholars and labour attorneys on
    57        the outside world began advising all employers (and you
    58        will see this language, or you should see this language, in
    59        virtually every handbook that would exist in the US; it
    60        would only be those that were not getting some legal advice

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