Business and Employment Law for Human Resource Practice - Essay Example

?Business Law Question Advise Mark generally and in particular as to whether he is likely to succeed in any claim against Fit and Well Ltd, and if so, what claim(s) and why. In answering this question, you may assume the company’s disciplinary procedures are not part of Mark’s contract of employment. DO NOT calculate potential damages or statutory ccompensation”. The conduct of Mark amounts to disobedience depending on your position as you look at it. Mark should set up legal proceedings against Fit and Well Ltd because he is likely to win the case. The company has grossly violated the contractual terms of the agreement they signed with Mark (Walsh, 2006, pg. 544). The grounds for Mark’s dismissal are that he refused to accept orders from his boss. It is noteworthy that the two have a long history of misunderstanding and criticism of each other’s leadership and professionalism. Whereas Mark accuses his boss for poor leadership and undue targeting with more work, Rebecca thinks that Mark is unprofessional in his attitude towards work (Walsh, 2006, pg. 544). Much as the company felt that they should dismiss Mark, they needed to follow due procedure provided for in the law and anchored in their contractual agreement. The claim that Mark shall use to win the case are many. First, Mark will need to prove that for the 12 years he worked for the company, he has never had a disciplinary issue and the misunderstanding between him and his boss are just based on dissenting opinion on how they perceive situations (Walsh, 2006, pg. 544). This is a valid reasoning because at every workplace, employees must not satisfy the perception of their bosses. Furthermore, the differences between Mark and his boss can better be resolved through conflict resolution mechanisms within the company, which were not even activated before his dismissal (Walsh, 2006, pg. 544). Therefore, Mark shall argue that the problem between the two of them should be handled through mediation so that they can speak openly about their reservations for one another so that they can be helped to find an amicable solution to their differing opinions and perspectives. Secondly, Mark shall argue that in his contractual agreement with the company he is not obliged to work overtime. Therefore, when the company desires that Mark should work overtime, they should discuss and agreed how compensation for overtime work shall be done (Walsh 2006, pg. 212). The approach Rebecca gave Mark that he should remain behind and work overtime should have been done in a better way. There was supposed to be an agreement signed to dictate how any work that Mark does overtime shall be compensated. Furthermore, there is nowhere in the contract where Mark was to work overtime (Walsh, 2006, pg. 108). Whereas it was better for Mark to show respect for his boss, this was not going to be possible through forcing him to work overtime disregarding plans that he might have had for the evening. Thirdly, Mark shall argue against the procedure the company followed to dismiss him. Mark will show that the company violated his employment and contractual rights. The company is entitled to give Mark 12 weeks’ notice before they dismiss him according to their contractual agreement. Therefore, the company violated this agreement thus leading to wrongful dismissal (Korn and Sethi, 2011, pg. 8). While arguing this case, the mark shall need to prove that the wrongful dismissal has caused him several challenges. The dismissal has caused him to lose his source of income immediately putting him into dire financial problems. Furthermore, he has the rights to seek legal redress on this matter. Mark will need to prove that through the legal process he should be allowed to access the remedies he has. The remedies he has for a wrongful dismissal include reinstatement and compensation (Korn and Sethi, 2011, pg. 8). Therefore, this is a strong case against the company because disciplinary procedures do not form part of Mark’s contractual agreement with the company. Fourthly, Mark shall argue that he did not get a fair hearing by the company. This is because the company ought to have listened to him in order to enable them understand that factors that were at play. The fact that Mark has the right to appeal is a great opportunity because the process can also serve the company to understand the problems between their two workers (Walsh, 2006, pg. 290). Therefore, Mark should appeal the dismissal. Finally, the management should note that Mark has dutifully served the company for 12 years without similar incidents. The company cannot be right to dismiss one person and leave the other when the reasons for their altercation are hinged on personal differences. The company also needs to recognize that not every employee’s disobediences should result in a summary dismissal (Lewis and Sargeant, 2004, pg. 159). This is because much as the disobedience was serious and wilful, it did not warrant summary dismissal because it was informed by a misunderstanding, which has two sides. Question 2: “Advise Simon as to any rights and remedies he may have against Fit and Well Co. Ltd. DO NOT calculate the potential damages or statutory Compensation” The case involving Simon and the company attracts certain consequences. The company decided to modernize their booking process by installing a computer for the person in charge of the section. In this case, Simon is the one in charge. It is notable that the company did not bother to provide on the job training to one of their long serving employees, and the decision to install a computer leads to his dismissal for underperformance. Simon is dismissed for his inability to perform in a technologically changing workplace. The dismissal of Simon is wrongful because he does not give notice and he is not given time to train on how to handle the new technology. Furthermore, Simon’s contract is terminated without cause leading to his dismissal. The manager did not take time to involve the Simon in the decision-making about the introduction of new technology in his department. This is not humanly practicable. However, with the dismissal being both wrongfully and exhibiting elements of termination without cause, Simon has certain rights that he can explore to get justice (Korn and Sethi, 2011, pg. 51). Simon has the right to claim payments for unfair dismissal and termination without cause. This is a right afforded to all workers in the country through diverse labour and employment Acts and regulations. It is easier for Simon employee to institute these claims when he can prove wrongful dismissal and termination without cause (Korn and Sethi, 2011, pg. 8). Simon may have certain rights and remedies against Fit and Well Co. Ltd. First, Simon may seek a remedy for reinstatement or re-engagement with the company (Chandler and Waud, 2003, pg. 136). This remedy shall require the company to give Simon back his job at the same rate of pay. If the company is not in a position to offer the same job, then they shall bring back Simon and re-engage him in another job. This is a practicable remedy because Simon has worked for the company for over ten years and can undergo training on how to handle the new technology so that he can go on with his work. The second remedy that Simon may have involves compensation. This is practicable in cases where the employer has failed to reinstate or re-engage their former worker. The compensation normally takes place in two main ways (Chandler and Waud, 2003, pg. 136). Simon may have a right to be given a basic award in the compensation deal. The basic award involves calculations on his salaries and other fringe benefits. The second right that Simon may have in this case is the compensatory award which is normally calculated according to actual income losses (Chandler and Waud, 2003, pg. 137). The compulsory compensatory award is provided in this case because Simon can prove immediate loss of income and the upsetting manner of dismissal without notice. Furthermore, Simon can prove future loss of income and other benefits because of lack of guarantee that he will get a job in future (Chandler and Waud, 2003, pg. 137). At the same time, Simon can prove that the manager failed to mitigate the loss of his job by failing to inform him of the pending introduction of fresh approaches to registering people. The third remedy that Simon may have is the additional award, which is normally offered 26 – 52 weeks’ salary if the company fails to reinstate him even after being ordered to do so (Chandler and Waud, 2003, pg. 137). Question Three: “Advice Laura as to whether she is entitled to a statutory redundancy payment. DO NOT calculate potential damages or statutory compensation” The employer undertook requisite redundancy consultations with the employees in order to discuss with them their future. It is notable that the process of redundancy consultations led to the proposal made to Laura to move to the headquarters to take up a new position in the supervision of the company’s administration staff at Fit and Well in Portsea. Furthermore, the company has made it understandable to Laura; therefore, she will receive the same salary and she will be offered a transfer package. However, Laura has considered the issue of her young family remaining and the fact that the children are happy in their nursery school and that the husband is happy working at Kent as a self-employed plumber. Therefore, Laura has rejected the offer provided by the company and instead is seeking redundancy compensation (Taylor and Emir, 2012, pg. 158) According to the redundancy regulations, Laura has a case against the company. She is entitled to statutory redundancy payments (McMullen, 2009, pg. 18). Redundancy regulations stipulate that employers must undertake the process in a lawful manner. Fit and Well Company at Kent has done the redundancy within the law. This is because the company engaged the employees in consultations to inform them of the intention to close the business at Kent. This is legal because companies are allowed by the law to declare workers redundancy for several reasons including conclusion of operations (McMullen, 2009, pg. 18). In this scenario, as the company closes its doors at Kent, there is the need that within the law they should pay their workers redundancy compensations particularly for the workers who meet the criteria (Taylor and Emir, 2012, pg. 156). However, sometimes the companies can enter into discussions with the workers to explore what other opportunities exist for their workers. This process leads to Laura being offered the new post at the headquarters. However, Laura has a case to seek statutory redundancy compensations on diverse grounds. Firstly, Laura shall argue that whereas she is offered a new role at Portsea, it is possible that the position does not compare with her previous role. At the company’s branch in Kent, Laura worked for the last five and a half years as the manager. In the new position, Laura shall work as a supervisor. This may be a lower position. Therefore, Laura may argue her case on the basis that she was offered a new position without an increase in higher rate of pay (Taylor and Emir, 2012, pg. 158). This is particularly important because the new position shall require Laura to relocate, and much as the company has offered her a relocation package, it may not solve the problem of leaving her family behind. It is also significant to point out that the family is the foundation of her life and moving away from them may be detrimental. It is also possible to argue that the relocation package may not be enough to cater for her movement into a new town with her family. Another scenario that would underpin a Laura’s argument would be that during redundancies the proposals made are not entirely to be accepted. This means that an employee can decide to reject and opt for statutory redundancy compensation (McMullen, 2009, pg. 60). Therefore, this would also be a valid reasoning for Laura. In this case, the company should find it plausible to pay their outgoing manager. Laura’s may support her arguments by the fact that she opts for the compensation because she has a young family that she cannot relocate with to a new town. It is also glaringly evident that, while Laura may decide to take up the job at the headquarters without moving her family, it will be tricky for her to commute to work. This is because the town is 200 miles from where they reside currently. Furthermore, the company only made an offer involving a relocation package (Mcmullen, 2009, pg. 68). The company would have considered the alternative option of enhancing Laura’s salary so that she can use the extra to cover transport costs. The case is simple, Laura deserves the statutory redundancy compensation based on the facts that the discussions that led to the proposal were not exhaustive, and that she was not keen moving into another town. Furthermore, she has been a loyal manager at the company for five and a half years, which automatically puts her in the category of people to be compensated (Mcmullen, 2009, pg. 18). Laura is also offered a new position that contradicts the contract she had signed before. Finally, it is not made clear whether the employer served the employees with a notice within a good period (Davies, 2010, pg. 418). Therefore, the fact that the company simply engaged in consultation without duly providing a worker with a notice of company closure may provide grounds for legal suits that Laura may argue. List of References Chandler, P., and Waud, C 2003, Waud's employment law: the practical guide for human resource managers, trade union officials, employers, employees and lawyers, Kogan Page, London. Davies, A 2010, Workplace Law Handbook 2011: Employment Law and Human Resources Handbook, Workplace Law Group, Cambridge. Korn, A., and Sethi, M 2011, Employment tribunal compensation, Oxford University Press, Oxford. Lewis, D., and Sargeant 2004, Essentials of employment law, Chartered Institute of Personnel and Development, London. Mcmullen, J 2009, Redundancy: the law and practice, Oxford University Press, Oxford. Taylor, S., and Emir, A 2012, Employment law: an introduction, Oxford University Press, Oxford. Walsh, D 2006, Employment law for human resource practice, Thomson/West, Minnesota. Read More