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Article

How Pilots Reach for the Sweet Spot of Conflict

Journal Corporate Mediation Journal, Issue 1 2022
Keywords positive work climate, communication, beginning conflict
Authors Eva van der Fluit
AbstractAuthor's information

    Both on the ground and in the air, attention to detail can make all the difference between safety and disaster. Focused on pilots, Eva van der Fluit investigates what is needed in order to align the perspectives of all professionals they collaborate with so as to facilitate solid judgment and sound sense-making as the basis for their actions. This can lead to disagreements and conflict, which is not necessarily bad when they can manage, constructively, the pinnacle of differing paradigms at crucial moments. This can be defined as the sweet spot of conflict. This spot represents the essential moment at which all perspectives come to the table, are exchanged and lead to new insights. It takes special skills to manage such a process, many of which can be seen as mediation skills. If pilots, most often the captain, can successfully keep the communication process focused on the content and if they do not make it personal, the sweet spot may result in achieving a coordinated outcome, supported by all involved. The way pilots manage what is known as beginning conflict (as distinct from escalated conflict) has attracted the attention of other professionals such as doctors, lawyers, accountants and board members. Even at the lowest level of an organisation, important lessons may be learnt from the best practices developed in the airline industry.


Eva van der Fluit
Eva van der Fluit is an independent management consultant, supporting professionals such as pilots, doctors, accountants and board members. In her PhD study, she analysed how KLM pilots manage conflict in the cockpit. In the interest of brevity, however, this article includes only a passing reference to this aspect of her work, and those interested in further exploring this theme are referred to her original work. See Professionals and ‘the sweet spot of conflict’, An ethnographic study of pilots. Van der Fluit M.E. (2016). Utrecht University. https://dspace.library.uu.nl/handle/1874/325587.
Case Law

2022/1 EELC’s review of the year 2021

Journal European Employment Law Cases, Issue 1 2022
Authors Niklas Bruun, Filip Dorssemont, Zef Even e.a.
Abstract

    Various of our academic board analysed employment law cases from last year.


Niklas Bruun

Filip Dorssemont

Zef Even

Ruben Houweling

Marianne Hrdlicka

Anthony Kerr

Attila Kun

Jean-Philippe Lhernould

Daiva Petrylaitė

Luca Ratti

Jan-Pieter Vos

    In a case arising from the sudden collapse of a construction company, the Employment Appeal Tribunal has confirmed the limited scope of the ‘special circumstances’ defence for not consulting on collective redundancies.


David Hopper
David Hopper is a partner at Lewis Silkin LLP.

Kerry Salisbury
Kerry Salisbury is an associate at Lewis Silkin LLP.
Case Reports

Access_open 2022/2 Unions have no veto over employer negotiations with staff (UK)

Journal European Employment Law Cases, Issue 1 2022
Keywords Collective Agreements
Authors David Hopper and Kerry Salisbury
AbstractAuthor's information

    The Supreme Court has confirmed that recognised trade unions do not have a veto over employers making direct offers to their members to change terms and conditions of employment. Employers must, however, follow and exhaust the collective bargaining processes with their recognised unions before they may make direct offers with a view to resolving an impasse that has arisen.


David Hopper
David Hopper is a partner at Lewis Silkin LLP.

Kerry Salisbury
Kerry Salisbury is an associate at Lewis Silkin LLP.

    The Iaşi Court of Appeal in Romania has upheld a decision issued by the Vaslui Tribunal which found that an employee cannot be the subject of disciplinary action for the refusal to perform work during their weekly rest notwithstanding that a working time schedule imposed by the employer was based on the applicability of an internal company policy.


Andreea Suciu
Andreea is Managing Partner of Suciu | The Employment Law Firm

Andreea Oprea
Andreea is an attorney-at-law at Suciu | The Employment Law Firm.

    Working as a rider for the Deliveroo platform is a professional activity that can be performed as a self-employed worker, the Labour Tribunal of Brussels has decided, which also ruled out the possibility of Deliveroo riders enjoying the fiscally beneficial status available for workers active on electronic platforms of the collaborative economy (or ‘sharing economy’).


Gautier Busschaert
Gautier Busschaert is an attorney-at-law at Van Olmen & Wynant, Brussels.

    Western Australia is experiencing high rates of recidivism among Aboriginal offenders. This challenge can be partly addressed by delivering culturally relevant programming. Its dearth, however, suggests two questions: what is culturally fit in the context of the prison, and how might such programming be constructed? This article responds to these questions by focusing on one element of culture, ‘values’, that is influential ideas that determine desirable courses of action in a culture. Firstly, a review of the literature and comparative analysis is given to the respective key values of Aboriginal culture and European and Anglo-Australian cultures. It also highlights the importance of repairing Aboriginal values with implications for providing culturally relevant prison programming. Secondly, a report is given on how an in-prison Aboriginal restorative justice programme (AIPRJP) was co-designed by Noongar Elders and prisoners and me, an Anglo-Australian restorativist. Using an ethnographic approach, the project identified a set of Aboriginal values for addressing the harms resulting from historical manifestations of wrongdoing by settler colonialism and contemporary crimes of Aboriginal offenders. Brief commentary is then given to the delivery of the AIPRJP, followed by a summary of findings and recommendations for using culturally relevant programming.


Jane Anderson
Jane Anderson is Adjunct Research Fellow at School of Population and Global Health, The University of Western Australia, Australia. Corresponding author: Jane Anderson at jane.a@westnet.com.au. Acknowledgements: I extend my appreciation to the Noongar Elders and prisoners of the South West of Western Australia who co-designed the AIPRJP. My thanks go to the prison superintendent and staff for supporting the initiative. I am grateful to the peer reviewers for their constructive criticism which has led to substantial improvements to this article.
Article

Mediation in Greece: The ‘Formal’ and Various ‘Informal’ Types, Off- and Online

The Architecture of Mediation in Greece – Shifting towards a Culture That Values Consensus-Building

Journal Corporate Mediation Journal, Issue 2 2021
Keywords mediation, Greece, special forms, mandatory, online, informal types
Authors Dimitris Emvalomenos
Author's information

Dimitris Emvalomenos
Dimitris Emvalomenos, Lawyer, LL.M., Accredited Mediator of the Greek Ministry of Justice & the Centre of Effective Dispute Resolution (CEDR), London, UK, Dep. Managing Partner at the law firm ‘Bahas, Gramatidis & Partners LLP’ (BGP).
Editorial

Access_open Solidarity and COVID-19: An Introduction

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Authors Wouter Veraart, Lukas van den Berge and Antony Duff
Author's information

Wouter Veraart
Wouter Veraart is Professor of Legal Philosophy at the Vrije Universiteit Amsterdam.

Lukas van den Berge
Lukas van den Berge is Assistant Professor of Legal Theory at Utrecht University.

Antony Duff
Antony Duff is Emeritus Professor of Philosophy at the University of Stirling and Emeritus Professor of Law at the University of Minnesota.
Article

Access_open Solidarity and Community

From the Politics of the Clan to Constituent Power

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Solidarity, Community, COVID-19 pandemic, Humanity, Ethnocentrism
Authors Luigi Corrias
AbstractAuthor's information

    What is at stake in invoking solidarity in legal-political contexts? The guiding hypothesis of this article is that solidarity is always and necessarily linked to the concept of community. A plea for solidarity will, in other words, directly lead one to the question: solidarity with whom? On the one hand, solidarity may be understood as extending only to those who belong to the same community as us. In this reading, solidarity builds upon an already existing community and applies to members only. On the other hand, invoked by those who aim to question the status quo, solidarity also plays a key role in practices of contestation. In these contexts, it focuses on collective action and the reimagination of political community. The article ends by articulating how this second interpretation of solidarity might prove helpful in making sense of our current predicament of a global pandemic.


Luigi Corrias
Luigi Corrias is Assistant Professor of Legal Philosophy, Vrije Universiteit Amsterdam.
Article

Access_open Populism, the Kingdom of Shadows, and the Challenge to Liberal Democracy

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Populism, Liberal democracy, Political representation, Société du spectacle, Theatrocracy
Authors Massimo La Torre
AbstractAuthor's information

    Populism is a somehow intractable notion, since its reference is much too wide, comprising phenomena that are indeed in conflict between them, and moreover blurred, by being often used in an instrumental, polemical way. Such intractability is then radicalized through the two alternative approaches to populism, one that is more or less neutral, rooting in the political science tradition, and a second one, fully normative, though fed by political realism, founding as it does on a specific political theory and project. In the article an alternative view is proposed, that of populism as the politics that is congruent with the increasing role played by ‘screens’, icons, and images in social relationships and indeed in political representation. In this way populism is approached as the specific way politics is done within the context of a digitalized société du spectacle.


Massimo La Torre
Massimo La Torre is Professor of Philosophy of Law, ‘Magna Graecia’ University of Catanzaro, Italy, and Visiting Professor of European Law, University of Tallinn, Estonia.
Article

Access_open What Solidarity?

A Look Behind the Veil of Solidarity in ‘Corona Times’ Contractual Relations

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Mechanical solidarity, Organic solidarity, Contract, Good faith, Punishment
Authors Candida Leone
AbstractAuthor's information

    The article uses three prominent examples from the Dutch context to problematize the relationship between contractual and social solidarity during the coronavirus crisis. The social science ideal types of ‘mechanical’ and ‘organic’ solidarity, and their typified correspondence with legal modes of punishment and compensation, are used to illuminate the way in which solidarity language in private relationships can convey and normalize assumptions about the public interest and economic order.


Candida Leone
Candida Leone is Assistant Professor at the, Amsterdam Centre for Transformative Private Law.
Article

Access_open Sick and Blamed

Criminal Law in the Chilean Response to COVID-19

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Solidarity, Punishment, Legitimacy, Inequality, COVID-19
Authors Rocío Lorca
AbstractAuthor's information

    The Chilean government called upon ideas of social solidarity to fight the pandemic of SARS-CoV-2 and it relied heavily on the criminal law in order to secure compliance with sanitary restrictions. However, because restrictions and prosecutorial policy did not take into account social background and people’s ability to comply with the law, prosecutions soon created groups of people who were being both over-exposed to disease and death, and over-exposed to control, blame and punishment. The configuration of this overpoliced and underprotected group became so visibly unjust that appealing to social solidarity to justify the criminal enforcement of sanitary restrictions became almost insulting. This forced the Fiscal Nacional to develop a ‘socially sensitive’ prosecutorial strategy, something that we have not often seen despite Chile’s inequalities. The changes in policy by the Fiscal Nacional suggest that perhaps, at times, penal institutions can be made accountable for acting in ways that create estrangement rather than cohesion.


Rocío Lorca
Rocío Lorca is Assistant Professor at Universidad de Chile’s School of Law.

    Terms-of-service based actions against political and state actors as both key subjects and objects of political opinion formation have become a focal point of the ongoing debates over who should set and enforce the rules for speech on online platforms.
    With minor differences depending on national contexts, state regulation of platforms creating obligations to disseminate such actors’ information is considered dangerous for the free and unhindered discursive process that leads to the formation of public opinions.
    Reactions to the suspension of Trump as not the first, but the most widely discussed action of platform companies against a politician (and incumbent president) provide a glimpse on the state of platform governance debates across participating countries.
    Across the countries surveyed politicians tend to see the exercise of content moderation policies of large platform companies very critically
    The majority of politicians in European countries seem to be critical of the deplatforming of Trump, emphasizing fundamental rights and calling for such decisions to be made by states, not private companies
    These political standpoints stand in an unresolved conflict with the constitutional realities of participating countries, where incumbents usually cannot invoke fundamental rights when acting in their official capacities and where laws with “must carry” requirements for official information do not exist for social media and would likely only be constitutional for narrowly defined, special circumstances such as disaster prevention.
    Facebooks’ referral of the Trump-decision to its Oversight Board sparked a larger debate about institutional structures for improving content governance. The majority of participating countries has experience with self- or co-regulatory press-, media- or broadcasting councils to which comparisons can be drawn, foreshadowing the possible (co-regulatory) future of governing online speech.
    Media commentators in participating countries interpreted the deplatforming of Trump as a signal that far-right parties and politicians around the world may face increasing scrutiny, while conservative politicians and governments in multiple participating countries instrumentalized the actions against Trump as supposed proof of platform’s bias against conservative opinions.
    Even without specific legal requirements on content moderation, submissions from several countries refer to a general – often: constitutional – privileging of speech of politicians and office holders. This could potentially support or even compel the decisions of platforms to leave content of political actors up even if it violates their terms of service.


Martin Fertmann
Martin Fertmann is a PhD student at the Leibniz-Institut für Medienforschung | Hans-Bredow-Institut’s research programme “Regulatory Structures and the Emergence of Rules in Online Spaces”

Matthias C. Kettemann
Prof. dr. Matthias C. Kettemann, LL.M. (Harvard) is head of the research programme “Regulatory Structures and the Emergence of Rules in Online Spaces” at the Leibniz Institute for Media Research | Hans-Bredow-Institut.

    The Arnhem Court of Appeal has examined whether an employee was reasonably able to take leave, applying the ECJ’s Max Planck and Kreuziger judgments. According to the Court, the employer did not violate its obligation to inform the employee regarding the lapse of the right to paid annual leave. The Court stated that the employee was reasonably able to take leave, despite being incapacitated for work due to sickness. The Court ruled that the employee was not entitled to an allowance in lieu of untaken paid annual leave, as the right to such leave had lapsed.


Tessa van der Stel
Tessa van der Stel recently graduated from Erasmus School of Law, Rotterdam.

    An Employment Tribunal (ET) decision involving an advertising agency has highlighted the dangers for employers of taking an overly aggressive approach to reducing gender pay gaps. It also provides a reminder that all discrimination is unlawful, even where the victims are from a historically privileged group.


Colin Leckey
Colin Leckey is a partner at Lewis Silkin LLP.

    Building upon the ECJ case law qualifying stand-by time with significant availability obligations of volunteer firefighters as working time, the Belgian Court of Cassation has upheld a system of compensation by which stand-by time pays less than regular working time.


Gautier Busschaert
Gautier Busschaert is an attorney-at-law at Van Olmen & Wynant, Brussels.

    The Irish High Court has determined that, pursuant to the definitions of ‘employment contract’ and ‘fixed-term employee’ in the Protection of Employees (Fixed-Term Work) Act 2003 (the ‘2003 Act’), a permanent employee temporarily upgrading to a more senior role on a fixed-term basis, was entitled to protection under the 2003 Act as a fixed-term employee despite the fact that he had the right to revert to his substantive terms and conditions as a permanent employee. The Court held that Council Directive 1999/70/EC on fixed-term work (the ‘Directive’) was not only concerned with an employee’s entitlement to continued employment, but also the nature, quality and terms and conditions of that employment. While Member States have the discretion to provide more favourable treatment to a broader category of employees than the Directive required, they could not define terms left undefined in the Directive or framework agreement on fixed-term contracts so as to arbitrarily exclude certain categories of workers from protection as ‘fixed-term workers’.


Sarah O’Mahoney
Sarah O’Mahoney is a General Knowledge Lawyer at Mason Hayes & Curran.

    The Dolj Tribunal has ascertained that a former employee, while acting as school director, by not fulfilling her obligations to schedule the annual leave of school teachers, including herself, cannot claim against the school as the employer for not providing the opportunity to take the annual leave or to inform of the possibility of losing such right. Furthermore, such actions of the former director will lead to the loss of the right to request compensation in case of termination of employment.


Andreea Suciu
Andreea is Managing Partner of Suciu I The Employment Law Firm

Teodora Mănăilă
Teodora Mănăilă is an attorney-at-law at Suciu I The Employment Law Firm, Bucharest, Romania.
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