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21-02-2012, 16:50   #16
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Originally Posted by later12 View Post
That's why I refer to an implication, and not a specific statement. Rights can perfectly legitimately be enjoyed by implication; I find your suggestion that an implied right is overruled by a private contractual agreement to be really surprising. Where are you getting this idea?
An implied right only exists where a court has deemed it so.

In the absence of any relevant case law, there is no "implied right" here.
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21-02-2012, 16:54   #17
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I said a few posts ago that this needs to be tested in the absence of any relevant case law.


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i don't know of any case law which clears up this issue, and in the absence of any such evidence, I don't believe that you can really know that any such contractual provision is binding on an employee without that having been tested, given the legitimate doubt that I think exists in the acts.
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21-02-2012, 16:58   #18
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I said a few posts ago that this needs to be tested in the absence of any relevant case law.
I understand that. But as it stands, the notice period in a contract stands unless the employee can prove that there is an implied right which exempts them from it.

The contract is considered valid unless it breaches any existing laws or rulings.

So it's up to the employee to challenge the notice period in the contract, it's not up to the employer to assert that it's valid.

In other words, in the case of a civil suit it would be up to the employee to prove that an implied right exists - it would not be up to the employer to prove that it doesn't exist. An implied right by definition doesn't exist until it's been declared.

Which means that in the legal sense, the notice period is legally binding until proven otherwise.

Last edited by seamus; 21-02-2012 at 17:01.
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21-02-2012, 17:26   #19
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Nobody is suggesting that the onus is on the employer to establish the validity of the contract... you're coming out with a series of basic facts like the employee cannot be sure of his implied rights until they are held to exist by the court...

My sole point is that a legitimate question appears to arise as to the validity of the contractual provisions which the OP has outlined in respect of employees with less than thirteen weeks' service. Unless you are denying this altogether, I really have no idea what your point is. I'm not seeing any suggestions throughout the thread to which the points you are raising would appear relevant.
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21-02-2012, 17:33   #20
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My sole point is that a legitimate question appears to arise as to the validity of the contractual provisions which the OP has outlined in respect of employees with less than thirteen weeks' service.
This is exactly what I've been talking about.

You may say that there's a valid question to be asked in general about such notice periods.

However, in a legal sense there is no question in the OP's case as to the validity of the contract which he signed because the contract is not in breach of any known law or ruling.

Last edited by seamus; 21-02-2012 at 17:37.
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21-02-2012, 17:45   #21
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You may say that there's a valid question to be asked in general about such notice periods.

However, in a legal sense there is no question in the OP's case as to the validity of the contract which he signed because the contract is not in breach of any known law or ruling.
If any party to a contract is concerned about the validity of some aspect of that contract in light of what appears may be a contradiction to any implied right in the statutory legislation, and they decide to establish the legal position in court, then I believe it may be said that there is a question about the matter in a legal sense

OP please disregard this pedantry. Enjoy your new position.

Last edited by later12; 21-02-2012 at 17:47.
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