Free Essay Sample «The Current Legal Status of Unjust Employee Termination and Discipline in the Healthcare Institutions»

«The Current Legal Status of Unjust Employee Termination and Discipline in the Healthcare Institutions»

General Provisions

Wrongful termination law is aimed to provide the rules for determination whether the actual employee’s dismissal was appropriate and all the means for it were legal. First of all, this area of the law is related to the violations of implied employment contracts. To say directly, these cases have to be concentrated on, if an employer was free from circulation by the employee. Additionally, it helps to determine whether termination contradicts the agreement between the employee and the employer (Deakin & Morris, 2012). Here discrimination on a workplace on the basis of a sex, race, a national identity, and other features can be listed. This can lead to unfair dismissal. The types of requirements are usually classified as the separate legal subject known as Chapter VII of the Civil Rights Act. In the center of almost all illegal terminations, there is a contradiction of the employment at will doctrine. If to say a few words about the doctrine, it was accepted in the majority of the states. It creates the assumption that all employers and workers are not connected with the labor relations. There is something bigger than their voluntary desire to continue the relations. Additionally, it is possible to end employment at any time, disregarding the reasons. It must be said that the doctrine contrasts sharply with the law in other countries, where the law demands employers to have sufficient basis for termination of the employee (Handling wrongful termination claims, 2001).

Even in the United States, however, the doctrine was moderated in some jurisdiction by "integrity and respectability."  Such granting prevents employers from deceiving the employee at will status. For example, the employer can be considered responsible for dismissal of the worker on the eve of an award simply to avoid giving an award (Handling wrongful termination claims, 2001). It is also important to understand that employment at will doctrine is only an assumption. It can be overcome by proofs of the agreement that the party was not free to break up an employment due to the lack of any rightful cause. In addition, it can be done during a certain period without carrying out any disciplinary procedures, etc. These are major reasons to investigate this part of the labor law. The employers sometimes sign the contract with the workers who are obviously declaring provisions and conditions of employment. It is clear that provisions of such contract will replace the employment at will doctrine (Handling wrongful termination claims, 2001). From the other point of view, the employer can simply make verbal statements for this subject. If employees reasonably rely on statements as on the promise of long employment, then implied employment contract was created by law. In the same way, employers can unintentionally create the contract having distributed the guidelines for the employee or other documents formulating the policy of the company concerning the termination (Handling wrongful termination claims, 2001).

One can review an example of the boss who was tired of his workers arriving at work late. He sent a message, explaining that any employee, who was late three times, would be dismissed. Next morning the employee arrived late. In spite of the fact that the employee was absent earlier only once, the boss dismissed the employee, declaring that he had the right to make so according to the law and on the basis of employment at will doctrine (Deakin & Morris, 2012). The boss was not faithful. Distributing leaflets, he created the implied employment contract. The employee can make the claim for illegal termination. Those who believe that they have been unfairly dismissed, have to understand at first that their case is described in the Charter. The expiration of the Charter indicates what time should pass between dismissal of the employee and the judicial claim. Thus, expectation of the lawyer and claimants can become inaccessible to simplification. Besides, it is often necessary to send the complaint to the Employment Equality Observance Commission (EEOC) before submitting a claim (Deakin & Morris, 2012). These and other procedures can become problems for people unfamiliar with the illegal termination laws.  In terms of any difficult legal question, preservation of the lawyer is insistently recommended.

Employees can make the claim for an illegal dismissal in nearly a half of the states on the basis of the obvious or implied promise of the employer. In the unilateral contract, one party makes the promise and asks for an opinion the other party. Usually this type of illegal action of emission will be based on the statement of the employer who obviously or implicitly promises employees an employment guarantee degree (Deakin & Morris, 2012). Usually, such statements are found in reference books or in the appendix of the employee provided to employees at the time of their employment. Some courts interpreted these statements as unilateral contracts. In these contracts, an employer has to promise not to back away from employees’ obligations excluding the rightful cause according to certain procedures. The claims of difficulty are based on the promise of the employer from the point of view of the employee. An employer can exclude possibility of the demand, having issued a policy statement which refuses any right for long employment. Some employees work on the basis of implied agreement (promise) of integrity and fair practice of business relations (Deakin & Morris, 2012).

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The employee exempted from obligations, as a rule, claims that the employer specified by various ways that the employee is secure at work and has fair treatment. For example, long-term employees who consistently received positive estimates can discuss the duration of service and a positive assessment of their work. There are obvious signs that their workplaces will be protected as long as they carry out their work well. However, only a few countries recognized any good belief and an honest exception to employment at the request of the employee. Employees that work more than 12 months have the right to claim unfair dismissal if dismissal was not executed according to the law. A wrongful dismissal results in the main award and compensation, restoration and return.

Basic Award

The main award is calculated the following way (exposed to a maximum of 20 years of service):

  • a payment of one week within each full year of service at the age of 22 - 40 inclusive;
  • 1.5 weeks’ payment within each full year of service after the age 41;
  • a payment of 0.5 weeks within each full year of service at the age of 22 years.

This calculation starts from the entry into force date so that if the employee worked more than 20 years, he can derive benefit of years which involves higher settlement. During a week all annually payments must be considered. If the employee received a legal aid for redundancy, the main award is compensated by the sum of received severance pay (Deakin & Morris, 2012).

Reinstatement/Re-Engagement

Restoration is a process when the employee is returned to the former workplace under the same conditions. It is prominent that it is made without losing employment continuity. The re-engagement means that the worker attends the employer on the same conditions, but not at the same work. He will not order the work if there is no work for the employee to come back or if the trust between the employer and the employee is broken. To return a claim or restoration, employees should know that additional compensation is paid if the employer refuses to carry out such order (Simmons, 2004). If the repeated obligation or restoration are ordered, and the employer does not promote it, the court can order an employer to pay additional compensation for losses which were sustained by the employee. It can be made for the period of 26 - 52 weeks and paid according to the maximum established by the law. Restoration is made only in about 1% of all successful cases of unfair dismissal (Simmons, 2004).

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Discipline in the Healthcare Institution

Discipline and ethics are very important in the sphere of healthcare. Any evident patients’ problems must be treated with respect and understanding from the side of doctors. Despite professional ethical commitment of honest communication, there are reasons to express the fear of considerable amount of lawsuits as the basis for nondisclosure. In particular cases, there is a concern that these statements will encourage unfair requirements or otherwise be used in support of the requirement against the client. The increase of ethical requirements for official position could provide an abuse of this official position (Borkowski, 2015).

If the patient is able to give the informed consent, a choice of the patient’s treatment has to be followed by the doctor. It is a well-known and feasible legal standard. Besides, any healthcare institution should follow an ethical principle of respect for a patient’s autonomy. There are two sections (substitute decision-making and preliminary orders) that deal with this principle. It is observed from the legal point of view that the patient lacks ability of temporarily or constantly making medical decisions (Dienstfrey & Schulman, 2005). The third section briefly investigates a problem of communication of a doctor with patients and puts in the forefront the modern dilemma lifted in the decisions concerning disclosure of medical mistakes to patients. From the other point of view, patients should provide only fair information about themselves. Honest communication with health workers is an ethical imperative. Excellent communication eliminates or reduces probability of misunderstanding and conflicts in a healthcare setting (Borkowski, 2015).

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It also can affect probability that the patient will make the claim. One of the most difficult questions arises in the context of communication. It is a question of whether doctors have to reveal medical mistakes to patients. Disclosure of a medical mistake creates the potential conflict among clinical ethics, legal, and risk management. There are some proofs in the closed systems that the apology together with disclosure and fast payment can reduce either probability or number of the requirements. Besides, some legislative assemblies of staff have recently worked to protect apologies of the supplier or an apology of the supplier together with data (Borkowski, 2015). This data is used by the patient as a proof of responsibility of the supplier in any subsequent lawsuit of medical mistakes. It is too early to judge whether this legal protection will have any impact on the size or frequency of requirements of a medical error. Therefore, it is desirable to include risk management and the legal adviser in decision-making process concerning disclosure of information upon a mistake.

Conclusion

It should be mentioned that there is a need to investigate the legal issues of unfair termination from the workplace and the need to develop medical workers’ ethic discipline. At any times, wrongful termination law was aimed to provide the maximum of the termination rules. It discussed in detail whether the actual employee’s dismissal was appropriate and all the processes for it were legal. First of all, the area of the labor law concerns the violation of implied employment contracts.

To say directly, these cases have to concentrate on the available acts and legal prescriptions on the labor issues. The main question is still whether an employer was free from circulation by the employee. Additionally, it helps to evaluate whether termination contradicts the agreement between the employee and the employer. Here discrimination at a workplace on the basis of a national identity, religion, sex, race and other such features can be listed. However, apart from the legal acts, there are lots of doctrines on this topic. For example, in the United States, the employment at will doctrine has taken prominent place. It was moderated in some jurisdiction by "integrity and respectability" (Simmons, 2004). This granting prevents employers from deceiving the employee at will status. For example, the employer could be considered responsible for dismissal of the worker on the eve of an award simply to avoid paying an award. It is also important to understand that employment at will doctrine is only an assumption.

 

 

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