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
