Abstract This paper examines why courts may dismiss cases on a "technicality" and why the American legal system has afforded technicality dismissals to accused defendants. The author looks at reasons for dismissals, such as failure to provide counsel, unreasonable searches and seizures, and failure to Mirandize the accused.
From the Paper "It is certainly true that cases are often dismissed during a preliminary hearing or at some other early point of a trial. This may be because evidence has come to light between the time of the arrest and the time of a preliminary hearing. But charges may well also be dismissed because of "technicalities". The next question must thus be what the nature of these technicalities is. They vary widely from case to case, of course, given that every case is different, but they can be generally categorized."
Abstract This paper outlines the major aspects of employment law that need to be considered by an organization. It bases its discussion primarily on a case analysis from a simulation based on the company, FastServe Incorporated. The simulation presents five candidates for dismissal and examines major areas of employment law and the legal implications surrounding dismissals.
Table of Contents:
Introduction
Regulatory Circumstances: Understanding Employment at Will & Collective Bargaining
The Agency Principle
Legal Risk and Business Risk
From the Paper "In conclusion, as shown from the simulation, employment law and the auspices surrounding the issue are expansive. The legal issues in the workforce stem from hiring, interviewing, dismissals and all aspects of labor activities. Employment risk plays a major part within this overall area. As shown from the simulation, it coincides with all legal issues in the workforce and even outlines aspects of the principal-agent problem studied in economics. Nevertheless, its understanding is important to the sustainability of an organization as is clearly outlined for FastServe."
Abstract This paper reviews labour laws in the United Kingdom and Canada in relation to wrongful dismissal and unfair dismissal. It assesses relevant cases to compare and contrast the situation in the two countries. It also discusses remedies available.
From the Paper "This research compares and contrasts remedies for wrongful and unfair dismissal that are available to employees in the United Kingdom ..."
This paper discusses whether public school employees can be denied job opportunities or be dismissed because they choose private schooling for their children.
3,375 words (approx. 13.5 pages), 5 sources, 2005, $ 133.95
Abstract This paper examines the issue of whether it is legal for public school employees to be dismissed from employment and or denied positions i.e. teaching, administrative etc. simply because their children go to private schools. The goal of this paper is to demonstrate that and show though legal proof by citing actual cases that public school employees in the United States cannot be denied positions and or dismissed because their children go to private schools. This paper references court cases and explains the courts reasoning as well as clarifies how the decision was made in favor of the plaintiff.
From the Paper "This paper examines the issue of whether it is legal for public school employees to be dismissed from employment and/or denied positions (i.e. teaching, administrative, etc.) simply because their children go to private schools. The goal of this paper is to demonstrate that (and show though legal proof by citing actual cases) that public school employees in the United States cannot be denied positions and/or dismissed because their children go to private schools. This paper references court cases and explains the courts reasoning, as well as clarifies how the decision was made in favor of the plaintiff or defendant. The two major cases that support the finding that employees cannot be denied positions and/or dismissed because their children go to private schools are: Barrow v. Greenville Independent School District ... "
Compares & contrasts the coverage of the dismissal of the the Paula Jones sexual harassment suit against President Clinton. Compares same day articles from NEWSDAY, USA TODAY, & THE LOS ANGELES TIMES.
1,125 words (approx. 4.5 pages), 3 sources, 1998, $ 39.95
From the Paper "The Paula Jones lawsuit has occupied the attention of the news media for a long time, and even with the discovery of new scandals about President Clinton, the Jones suit has remained a central issue. Other scandals are talked about as if they were related to the Jones suit. This makes the dismissal of the lawsuit on April 1, 1998 a major event, and it has been treated as such in the news media. This does not mean the lawsuit or its dismissal have clear meanings, and the way each has been talked about shows that the media cannot decide a number of things about the case or about the fact that it has been dismissed. In the early hours after the dismissal, the media speculated about what this meant--did it mean the case was over, would it be appealed, what does this say about the issues involved, and so on.
John Riley and Shirley E. Perlman in Newsday announced that.."
Abstract This paper describes a scenario where a patient manipulates his physician and lies about his medical background in order to obtain drugs for his substance abuse problem. The paper examines the responsibilities of the physician, whether he is ethically allowed to 'fire' the patient from his care and other issues to consider. The paper also includes a check-list for dismissing a patient.
From the Paper "This case is one of highly visible contradictions. The patient demands treatment and when it is provided, rejects it out-of-hand, attempts to self-prescribe, or adheres to the treatment plan only sporadically. The patient's self-defeating quest for chemicals that have been conclusively identified to exacerbate ? if not advance ? the primary diagnosis and the inclusion of his primary physician in the contraindicated use of these chemicals flies directly in the face of the oath to "do no harm" that all physicians take prior to practicing medicine.
Firing a patient is rarely an easy decision. The driving reason for entering medicine is to heal and serve humanity. No one can be expected to work well with everyone and physicians are no exception. When the foundation of trust is eroded to the level that Sam perpetrated through his lies, drug-seeking behavior, noncompliance, and ambivalent self-care, the Physician's dismissal was requisite to self and practice preservation."
Abstract C.S. Lewis, in "English Literature in the Sixteenth Century", dismissed Daniel's "Delia" on the grounds that: "It offers no ideas, no psychology, and of course no story: it is simply a masterpiece of phrasing and melody" (Lewis 491). Samuel Daniel's sonnet sequence, "Delia" (1592), is undeniably remarkable for its phrasing and melody. However, one can take issue with Lewis' depiction of Daniel's achievement. This essay will argue that, contrary to Lewis' statement, Daniel's "Delia" reveals a complex level of interlocking patterns of thematic ideas and imagery. One cannot assert broad generalizations about a poet's entire work, much less the poetic production of an entire era, from the textual analysis of a single work. Includes annotated bibliography.
Abstract In this paper the author discusses the issues at hand when an employee is dismissed from his workplace due to sexual harassment whether it be fair or unfair. The author highlights the real problem for the typical employee in that he does not have the information, or the help to fight a suit from the beginning. A company has lawyers on a retainer, some of whom specialize in fighting employee termination suits. The paper concludes with recommendations of what can be done for fairer treatment.
From the Paper "We have moved from the Stone Age, where cave men dragged their women through valleys and mountains, often by their hair, to the age of frightening realities where women fear the potential sexual innuendoes, even unwanted "touching" by men, while men are afraid to do or say anything- even for an executive to close his office door with his secretary or some other woman present."
Abstract The writer describes how the ethical dilemma arose when an investigative reporter discovers a threat of legislation against a motor company for unfairly terminating an employee. The motor company has bought a large amount of advertising space at the newspaper where the said reporter works. The writer describes that the stated policy of the company is to remain non-partial in its hiring and termination of employees. The paper shows that the employee claims that he was mistreated and subsequently terminated because of his race and religion. However, the writer reveals the reporter's claims that the employee had been caught stealing money from the company's cash box. This article discusses the problem that arises as a result of the company's refusal to allow newspaper reporting regarding the matter. The writer shows that if the reporter were then to write about the matter, it constitutes a conflict of interest with an advertiser.
From the Paper "The reporter in question brought the matter to the attention of the editor, who contacted the human resources manager to discuss the matter. It was decided that it was in the paper's best interest to pursue the story. The policy of the Weekly Herald is clearly that reporting should be honest, current and impartial. If any place of business is guilty of misconduct with regard to its employees, readers have the right to know about it. Furthermore, in the intensely competitive world of reporting, it would serve the paper well to bring fully investigated, truthful and timely material to the reader. Waiting for the angry employee to go to the press with the story would be unfair both to the paper and to its readership. Firstly, the Weekly Herald would prove untrustworthy in terms of newsworthy items and secondly, it is likely that the objectivity of the story would be compromised."
Abstract The paper explores the ethics of the practice of terminating patients for lack of compliance to prescribed medical treatments. The paper also researches the ramifications of this practice for the patient and for the medical practice. The paper then looks at the alternatives to dismissing a patient and discusses the steps that can be taken by the nurse practitioner to help avoid this unfortunate event.
Outline:
Factors Affecting Patient Noncompliance
Legal Ramifications of Discontinuation of Treatment
Conclusion
From the Paper "Advanced Practice Nursing represents a partnership between the patient and service provider. Many times the success of the treatment plan depends on the patient taking responsibility for compliance with certain prescribed actions. Examples of these actions include taking prescribed medication as directed, following a certain diet, or following an exercise regimen. If a patient does not follow the treatment plan, it can jeopardize the outcome of the treatment. Many physicians and other medical practitioners now view patient noncompliance as a breach of the relationship."
Tags: medication, discontinuation, treatment, communication
A critical analysis of the doctrine of constructive resignation and a discussion of whether or not it should be introduced or sustained in Malawian employment law.
Abstract This paper discusses the doctrine of constructive resignation in the context of employment law or employment relationship. In particular, it attempts to address whether this doctrine should be introduced or sustained in employment law in Malawi. The paper proceeds on the premise that in Malawian employment law - statutory or case law- the doctrine of constructive resignation is not provided for. It is, however, recognized and applied in other jurisdictions namely, Unites States, Canada, United Kingdom and Philippines. This paper concludes with the recommendation that the doctrine be introduced in Malawi, although with necessary modifications to suit the employment situation and the right to fair labour practices.
Outline:
Acknowledgement
Preface
Table of Contents
List of Abbreviations
List of Cases
Chapter One
Introduction
Background of the Study
Statement of Problem
Objectives
Methodology
Lay Out of the Essay
Chapter Two
The Employment Relationship
Introduction
The Contract of Employment
Identifying the Contract of Employment
Employment Relationship
Nature of Employment Relationship
Terms, Conditions, Rights and Duties
Conclusion
Chapter Three
Termination of Employment
Introduction
Termination by Employer
Fair Dismissal Lawful Dismissal Termination by Employee
Rights Relating To Termination Of Employment
Conclusion
Chapter Four
The Doctrine of Constructive Resignation
Introduction
The English Doctrine of Constructive Resignation
Statement of the Doctrine
Theoretical Basis
The "Elective Theory"
The "Automatic Theory"
Elements of the Doctrine
Conduct
Fundamental or Repudiatory Breach
Self-Dismissal as the Result of Prior Agreement
The United States Doctrine of Constructive Resignation
Conclusion
Chapter Five
Should The Doctrine Of Constructive Resignation Be Introduced Or Sustained?
Introduction
The English Doctrine of Constructive Resignation
The United States Doctrine of Constructive Resignation
Conclusion
Chapter Six
Conclusion
From the Paper "Of late, it has been in issue whether one can or has constructively resigned10. This is in issue in Malawi and other jurisdictions. The doctrine of constructive resignation is to the effect that if the conduct of the employee amounts to a repudiation or a fundamental breach of the contract of employment the said conduct automatically terminates the contract, in which case it is the employee rather than the employer who will be deemed to have terminated it. The employer is entitled to dismiss him even without hearing him. He may as well say: "he sacked himself"11. In Malawi there is no statutory doctrine of constructive resignation, and apparently there is currently no case which has said the doctrine is applicable in our employment law."
Abstract This paper examines how the judges in the case Litster v Forth Dry Dock, employed the four commonly accepted rules of statutory interpretation: the literal rule, the golden rule, the mischief rule and purposive construction. It looks at how the case itself concerned a claim of unfair dismissal by twelve employees of the insolvent Forth Dry Dock & Engineering Co., dismissed from their jobs one hour prior to the transfer of the business to Forth Estuary Engineering Ltd. It also focuses on the view that the primary use of purposive construction enabled the judges to reach a decision which may not have been possible with the three more traditional approaches.
From the Paper "The literal rule, perhaps the most fundamental and commonly used "rule" of statutory interpretation, suggests that a judge must adhere to the exact wording of a statute, based on the premise that courts are limited in their interpretive discretion. Even in such cases as Stock V Frank Jones, in which the clear wording of legislation relating to strike action led to a seemingly unfair judgement, application of the literal rule was unavoidable, as explained by Lord Edmund-Davies - "dislike of the effect of a statute is no reason for departing from its plain language" . In Litster, it is clear that the literal rule had been applied by the Court of Session, which deemed that the applicants had not been dismissed "immediately before" the transfer, and then used this as the basis of their ruling to obviate the transferee of any responsibility to them."
Abstract This paper relates the case of Misty Mountain Inc., a mining company, which is facing multiple discrimination charges by the U.S. Department of Labor for having illegally discriminated and dismissed two local miners who complained about hazards, thus infringing the federal Mine Safety and Health Act. The author points out that this charge is based on the federal Mine Safety and Health Act, 1977, which bars companies from dismissing or harassing miners who deny work in hazardous circumstances and report matters regarding threat of safety at workplaces. The paper contends that the MSHA is juggling with the statistics of miners' deaths, which is a problem, because precise reporting of injuries related to mining activities is important to the persistent enhancement in the occupational safety in the mines of the country.
Table of Contents
Introduction
Case Study
Mine Act
The Real Face
From the Paper "In yet another case Castle, Mystic Energy Inc, mine employee, lost his life on July 26 in the mine premises when his vehicle dashed with a coal truck on a company haul road. MSHA has failed to take cognizance of the accident and has not termed it as 'chargeable'. Even though the policy of MSHA is unequivocal as regards workers/miners who lose their lives on the premises of the mines, the death of that worker is chargeable. Within the ambit of the definition of worker is included not just mine employees, but even salesmen, delivery people or others with business interests at the mine site."
Abstract The paper examines the dismissal of Ms. Maria Rodriguez from her position with The Cookie Jar, a reputable Toronto-based company. The paper begins first by examining the facts of the case as they are presented to the arbitrator. The paper examines the law as it pertains to any such situation wherein an employee such as Ms. Rodriguez is dismissed for breaching a condition of her employment.
From the Paper "The following paper will examine the dismissal of Ms. Maria Rodriguez from her position with The Cookie Jar, a reputable Toronto-based company. The paper begins first by examining the facts of the case as they are presented to the arbitrator. From there, the paper examines the law as it pertains to any such situation wherein an employee like Ms. Rodriguez is dismissed for breaching a condition of her employment. In so doing, the paper will draw upon some noteworthy precedents within the law which bolster Ms. Rodriguez's claim that she was unjustly terminated from her job."
Abstract The paper discusses the origins, strengths and weaknesses of gender-based theories of criminal behavior and whether they are consensus-based or conflict-based. The paper discusses how gender-based theories of crime are often neglected in investigation into crime theory. The paper explains that such dismissals are erroneous, not only because they ignore the role women play in crime but because they dismiss discussion over why males are so proportionally involved in crime.
Outline:
Introduction
The Birth of Gender-Based Crime Theories
Contemporary Gender-Based Crime Theories
Strengths and Weaknesses of Gender-Based Theories of Criminal Behaviour
Gender-based Theories of Crime as Conflict or Consensus-Based Approaches
Conclusion
From the Paper "The lack of theoretical investigation into gender-based schemas of crime has been noted by contemporary criminologists. This is strange, given that gender is clearly a notable factor in criminal and delinquent behaviour: only 7 percent of prison inmates and 11 percent of jail inmates are female, and women comprise only 14% of sworn officers in large police departments (Flavin, 2003, p. 225). So why is gender and its relationship to crime so often overlooked in academic circles? Past inattention to the issue has been somewhat redressed in recent times based on a growing number of gender-based theories of criminal behaviour. The sum of these theories generally relate to the "invisibility" of women in a patriarchal society defined by paternalism, sexism and traditional notions of chivalry. Gender theories of criminal behaviour generally revolve around two schools of thought: that of criticizing traditional male approaches to crime study and of developing "gender-sensitive interpretations of deviance and a consideration of the nature of female criminality" (Williams & McShane, 2004, p. 254)."
