Добірка наукової літератури з теми "Individual termination of labour legal relationship"

<p>Lack of court protection for officers whose current service relationship is substituted with a form that is less beneficial – an employment relationship, should be seen as a violation of their right to trial. A labour court, by definition, is not an appropriate court when it comes to cases of entering into or the termination of service relationships having a legal and administrative character. This court can judge cases concerning the employment relationship of an employee but fundamentally does not have jurisdiction to assess the establishment and termination of a legal and administrative relationship. Therefore, sending customs officers to labour courts causes the transformation of a service relationship into an employment relationship to slip out of court control.</p>

This article focuses on the procedural norms concerning antidiscrimination and labour rights protection. By analyzing concrete legal norms, the authors attempt to address the key question: what is the appropriate way of ensuring legal protection for victims of unlawful termination due to discrimination? The fact is that two different legal procedures contain different rules about time limit for initiating civil proceedings, filing a claim or motions, as well as didderent rules on the burden of proof. These complex issues have been insufficiently addressed in theory and practice. For the purpose of overcoming this problem, the authors provide an insight into the comparative law solutions which may be used as guidelines in prospective legislative efforts and adjusted to the specific features of the legal system in the Republic of Serbia.

THE SPECIAL PROTECTION OF EMPLOYMENT RELATIONSHIP ON THE BASIS OF APPOINTMENTRESULTING FROM THE LABOUR CODEThe subject matter of this study is an analysis of the legal mechanisms resulting from the provisions of the Labour Code which concern the special protection of an employment relationship which is based on appointment, regarding both their subjective scope as well as the terms of the correctness of their applications by the appellant the employer. Among the ways of establishing an employment relationship, appointment stands out by providing the smallest degree of stabilization, not only because of the scope of the claims that recalled employees are entitled to and the lack of the possibility of applying the usual modes of conduct for the termination of an employment contract, but also because of the nature of the special protection, which allows for the appointed employee to be recalled and poorly protects against the termination of the employment relationship. Measures for the protection of an employment relationship on the basis of appointment, resulting from the provisions of the Labour Code, have a limited subjective range. The legislature has also resigned from an absolute ban on the termination of an employment relationship and allows only the extension of the duration of the existing relationship or the continuation of an employment with the previous employer, but on a different legal basis.

Dismissal is the legal institution that, on the initiative of the employer or for reasons related to the employee, causes the termination of the individual employment contract. In case of application of the provisions of art. 65 of the Labor Code, regarding the termination of employment for reasons not related to the person of the employee, the topic is of the utmost relevance, in the current economic context. The legality of such a dismissal decision will relate to the existence of a real and serious cause, thus eliminating the possible subjective conduct of employers, not accepting the absence of the actual cause or the elements that define discrimination in employment relationships. The article discusses the conditions of legality of a dismissal decision leading to the termination of employment, as well as the accepted motivation, with reference to opinions in legal doctrine and practice.

Currently, labor relations with the participation of employers — individuals are widespread. In this regard, the legal status of such an employer and the possibilities of representation in labor relations with his participation are of particular interest. In the article, the authors analyze some questions of representation of the employer — an individual, both having the status of an individual entrepreneur and without it; problematic aspects of the termination of labor relations with the participation of an employer — an individual entrepreneur in the event of his death. Ways have been proposed to improve the labour legislation of the Russian Federation in order to more fully regulate the legal status of the employer — an individual, as well as the direction of the development of law enforcement practice.

Accurately installed procedural and process mechanism of realization of norms is necessary for achievement of expected result at permission of collective labour disputes, in this regard in article various approaches of scientists to concept of process and procedure are considered. The axiom of procedural legal relationship on permission of collective labour disputes is allocated. As a scientific hypothesis authors make offers concerning an integration of universal legal procedures pro­perly in the form of serving norms in legal relationship about individual and collective labour disputes.

Introduction. The article deals with procedural and procedural rules of certain institutions of labor law, which contain rules that define the special rights and obligations of subjects, fixing their social and labor rights and interests. The author substantiates the need for detailed regulation of the procedure for implementing such norms, since the sequence of their application and compliance directly affect the normal development of labor relations. Purpose. The purpose of this work is a comprehensive analysis of procedural and procedural rules of labor law based on the study, analysis and generalization of the scientific base, current legislation and practice of its application. Methodology. In the process of achieving the goal and solving the set tasks, the general scientific dialectical method of cognition, as well as logical, system, historical, comparative legal and formal legal methods were used. Results. In the course of the research, we come to the conclusion that some procedural rules of certain institutions of labor law have numerous gaps and often in relation to the process or production, we are always talking only about legal activity. The implementation of almost all substantive rules requires procedures or, in other words, procedural rules. Conclusion. Procedural and legal norms are a relatively independent element of the mechanism of legal regulation of labor relations. The official application of any substantive law should be carried out in a specific procedure, which distinguishes the subject of the enforcement order of its work and relationship with the requiring party, the right of appeal against enforcement, etc. All require further elaboration and regulation.

Would a codification of labour law — in the Continental meaning of the word, and not a mere consolidation of existing statutes — enhance the development of this field of law ? Would the resulting instrument be likely to generate more appropriate ways of dealing with labour situations, whether or not they pertain to a collective bargaining context ? Adjective as well as substantive law would have to be involved in such an exercise. The latter aspect raises the fundamental issue of the proper relationship between the general law — civil law essentially — and labour law. What degree of autonomy is necessary to the integrity of the specialized law ? Conversely, to what extent is the general law to be relied upon to provide the necessary second-line set of legal provisions ? For instance, the two sets of legal rules entertain different views as to the termination of the employment relationship and as to the effect of a collective agreement. A well-integrated body of labour law should, in the author's opinion, govern comprehensively labour situation. The codifying process would also aim at eliminating internal discrepancies and a simpler, more accessible legal subsystem would emerge. As to the adjective aspects of labour law, the identification of desirable forms of third-party intervention relating to both collective bargaining and labour standards legislation could lead to appropriate jurisdictional arrangements. In the case of industrial conflicts, of particular interest are the flexible powers of intervention with which the Canada and British Columbia labour boards are endowed. Consideration should also be paid to certain European models — namely the Conseil de prud'hommes — which allow both conciliation and adjudication to take place in the solving of normative law conflicts of application. A full-fledged Labour Code would indeed invite the setting up of a more authentic Labour Court.

This article analyses the contractual relationships concerning temporary agency work: specificities of the employment contract between the agency (as an employer) and worker; contractual relationship between agency and the user undertaking and the factual relationship between the user and agency workers. Concerning the employment relationship between the agency and worker, the analysis focuses on the fact that only legal subject that fulfils specific conditions can operate as an agency; further, on the duration of the employment relationship, the workplace, rights and the termination of the employment relationship. Despite the fact that the agency and the user conclude the commercial contract, those contractual parties are limited by the labour law rules that are the object of the analysis in this article. Thirdly, the article deals with the relationship between the agency worker and user, that is not formalized by the conclusion of the contract, but regulated by the labour legislation, that prescribes the workers’ rights and its impact on the user’s stable workers’ rights. The authors analyse the mentioned contractual relationships as regulated in Croatian and Slovenian labour law, as well as by EU law, giving the examples of good practice used in some European countries.

The article deals with the problems of determining the legal status of a child in the field of labor relations. The author came to the conclusion that the specifics of the legal status of children when concluding, changing and terminating an employment contract with an employer is of great theoretical importance and should be taken into account in the content of industry-specific norms. The author of the article proves that the relationship between the physiological characteristics of a child and the type of work he performs is important for protecting the labor rights of minors, identifies the main trends in the development of labor legislation in the field of labor protection for children, identifies the problems of legislative regulation of child labor in modern Russia. When writing the article, the following methods were used: synthesis, analysis, the method of comparative jurisprudence, etc. The practical significance of the work lies in the need to take into account the specifics of the legal status of the child in the field of labor relations, in the analysis of the legal regulation of the labor of this category of persons not only in Russia, but throughout the world, the problems of child labor in individual states are systematized and ways to solve them are proposed. As a result of the study, the author determined that the work of children differs in its regulation, scope of rights, a number of restrictions on their employment, in contrast to adult workers. In the modern period, the sphere of child labor requires special attention from the state and requires the adoption of appropriate decisions at the legislative level.

Дисертація на здобуття наукового ступеня доктора юридичних наук за спеціальністю 12.00.05 – трудове право; право соціального забезпечення – Київський національний університет імені Тараса Шевченка. – Київ, 2019. The dissertation for the scientific degree of the Doctor of Law in specialty 12.00.05 – labor law; social security law – Taras Shevchenko National University of Kyiv of the Ministry of Education and Science of Ukraine. – Kyiv, 2019.
Дисертація присвячена формулюванню основних доктринальних засад захисту трудових прав працівників при припиненні трудових правовідносин. У роботі запропоновано розрізняти між собою індивідуальне та колективне припинення трудових правовідносин, враховуючи при цьому, що рівень і система гарантій для захисту визначаються концепцією «чистої» та «обтяженої» волі на припинення трудових правовідносин, наявною у їхніх сторін. Визначено підстави, умови, особливості індивідуального та колективного припинення вказаних відносин. Окрему увагу приділено захисту трудових прав працівників при припиненні трудових правовідносин на підставі процедур банкрутства. Проаналізовано та порівняно досвід України й окремих країн ЄС щодо правового регулювання та судової практики означеного захисту на підставі вказаних процедур. Сформульовано основні доктринальні положення щодо поняття, ознак захисту трудових прав працівників при припиненні трудових правовідносин, встановлено принципи, відповідно до яких має відбуватись такий захист, виокремлено захисні процедури, систематизовано та узагальнено проблеми, що існують в означеному сегменті, й запропоновано шляхи їх вирішення. The thesis focuses on formulating the basic doctrinal principals for protecting employees’ labour rights in termination labour legal relationship. The study proposes to distinguish between individual and collective termination of labor legal relationship, while the level and system of guarantees for protection are determined by the concept of “pure” and “burdened” will for terminating labor legal relationship by their parties. The grounds, conditions, features of individual and collective termination of the mentioned relations are determined. Particular attention is paid to protecting the employees’ labor rights in case of labor legal relationship termination on the basis of bankruptcy proceedings. The experience of Ukraine and individual EU countries regarding the legal regulation and judicial practice of this protection based on the pointed procedures is analyzed and compared. The basic doctrinal provisions regarding the notion, signs of protecting the labor rights of employees upon labor legal relationship termination have been formulated, the principles are established according to which such protection should take place, the protective procedures are highlighted, the problems, existing in the segment under review, are systematized and generalized, and the ways to resolve them are proposed.

A ação de impugnação judicial da regularidade e licitude do despedimento, introduzida no ordenamento jurídico-laboral através do Decreto-Lei n.º 295/2009, de 13 de outubro, consiste no mecanismo processual célere e simplificado que o trabalhador tem à sua disposição para impugnar a decisão de despedimento individual que lhe tenha sido devidamente comunicado por escrito, apresentando-se, por isso, de extrema relevância no âmbito de uma relação jurídico-laboral. Apesar de se demonstrarem inegáveis as pretensões do legislador aquando da criação deste processo especial no direito laboral adjetivo, certo é que este mecanismo processual não fica exonerado de críticas, por força das diversas dúvidas interpretativas e aplicativas que sempre colocou a todos os operadores judiciários. Volvidos quase dez anos desde a sua criação, importa com o presente estudo proceder a uma análise crítica das diversas dúvidas que a tramitação deste mecanismo processual apresenta, de modo a desenvolver-se a reflexão necessária que seja suscetível de alcançar um consenso mínimo para resolução dessas dúvidas interpretativas e aplicativas, equacionando-se, para o efeito, as mais recentes alterações submetidas ao Código de Processo do Trabalho.
The legal action to the impugnation of the regularity and legality of the dismissal, introduced into the labour-legal system through the Legislative Decree n.º 295/2009, of October 13, is a fast and simplified procedural mechanism that the worker has at his own disposal to contest the individual dismissal decision that has been duly communicated to him in writing. Therefore, this legal action is highly important in the context of a legal relashionship of labour. Despite the undeniable claims made by the legislator at the time of the creation of this special procedure on the adjective labour law, the truth is that this procedural mechanism is not exonerated from criticisms, due to the many interpretative and aplicative doubts that have always been made by judicial operators. Close to almost ten years since its creation, it is important for this study to undertake a critical analysis of the several doubts presented by the procedural protocol of this mechanism, in order to develop the needed reflection capable of reaching a minimum consensus for the resolution of those interpretative and aplicative questions, considering, for this purpose, the most recent amendments submitted to the Labor Procedure Code.

This chapter highlights labour law arbitration in Brazil. Traditionally, labour law in Brazil recognises two main groups of rights: individual and collective rights. Individual labour relations are concerned with the relationship between individual workers and their employers. Collective labour relations refer to the social relationships generated through processes of consultation and negotiation—over working conditions, labour standards, and other employment issues—between, on the one hand, the workers' collective or their representatives and, on the other hand, the employers or employers’ organization. Even before the Labour Legislation Reform of 2017, Brazilian legal order already provided in its Constitution and in other legal statutes the possibility of arbitration for collective labour rights. On the other hand, before the promulgation of the Labour Legislation Reform, there was no provision under Brazilian Law that would open the possibility of arbitration in the event of individual labour disputes.

Ethics, or moral philosophy, is an attempt to define principles that govern how people should behave in society. Healthcare is practised within communities and must reflect the cultural and ethical values of society as a whole. Professional codes of ethics are not unique to healthcare, but from as early as the 5th century BC ethical behaviour has been acknowledged as a cornerstone of good medical practice. The relationship between a health professional and a patient is one where power lies predominantly with the health professional and the various biomedical ethical codes seek, among other things, to redress that balance. Underpinning all of biomedical ethics are four main principles or shared moral beliefs first articulated by Beauchamp and Childress in the 1970s:¹ Respect for autonomy of the individual. Non-malfeasance (do no harm). Beneficence (do good). Justice (fairness and equality).In some situations the principles can be opposing and each health professional must decide on the right course of action in those circumstances and be accountable for their decision. Material is available to help deal with such dilemmas and in the UK both the General Medical Council (GMC)² and the British Medical Association (BMA)³ produce comprehensive guidance. Cultural and societal differences can lead to varied views on what is ethically acceptable and global guidance issued by bodies such as the World Medical Association⁴ is particularly useful as people become more mobile internationally. The issues in occupational health (OH) may differ from those in other branches of healthcare but the same four principles apply. A therapeutic relationship is uncommon in OH and blanket use of the term ‘patient’ in describing ethical duties may therefore be unhelpful since it may lead healthcare professionals and/or those to whom they are rendering services to believe that ethical guidance does not apply to much of their work. Internationally the term ‘worker’ is used much more widely in ethical guidance and this is the terminology that will be used throughout this chapter, whether or not a therapeutic relationship exists. In practice, the ethical challenges and reasoning that should be applied are essentially the same, whether the relationship is a therapeutic one or not, since the power predominantly lies with the OH professional. A worker is far more likely to divulge confidential information to a member of the OH team than to a lay person and management is far more likely to accept guidance on health matters from an OH professional than from someone without a healthcare qualification. OH practitioners enjoy the authority and the status of their core professions—they must therefore apply the same ethical principles as their peers in other specialties. Ethical guidance in OH has tended to be produced at national level, by and for individual professional groups within the discipline.^5,6 This has its benefits but does not reflect well the multidisciplinary nature of most OH teams or the increasing globalization of the workforce. The International Commission on Occupational Health (ICOH) has produced a code of ethics⁷ that applies to all OH professionals and which is particularly helpful for those with international responsibilities. There is sometimes confusion between acting ethically and acting lawfully. They are not the same. Laws sometimes allow health professionals to opt out on ethical or moral grounds (e.g. termination of pregnancy). Where that is not the case practitioners should reflect carefully, consult with appropriate colleagues and follow their conscience in full knowledge of any potential consequences for themselves of breaking the law. Simple legal compliance does not guarantee ethical behaviour and acting ethically may be unlawful. The hallmark of a professional is taking responsibility for one’s own actions and acting with probity—that may be difficult but the application of sound ethical analysis can ease the process.

The report raises the problem of the exclusion of a partner as a penalty consequence for culpable neglect of the obligations arising out of the membership. It supports the thesis that exclusion is a subjective right of the company. Exclusion is defined as having a dynamic actual structure, and three major elements thereof have been examined: grounds for exclusion, procedure, and legal consequences of the termination of membership. It has been inferred that the principle for validity of exclusion is a legal guarantee for the freedom of the individual in the relationship between personality and society.