Summary Dismissal of Mark - Essay Example

? Topic Number Department Summary Dismissal of Mark Summary dismissal in essence is a kind of dismissal that is instant due to gross misconduct and in many cases it takes effect immediately. There is no notice to termination of contract and the employer has the upper hand over the employee. However, the law is not quite clear as to what offenses constitute grounds for summary dismissal and therefore it may be used as tool for settling scores1. In the case of Mark, the employer had some grounds which could warrant for summary dismissal and he went ahead to dismiss him. From the point of view of Mark, the action of the employer is unlawful and as such it constitutes an unfair dismissal. The grievances of Mark presented in the case study are true and they form a ground upon which he can appeal against the termination of his contract. In this regards, I will argue that wrongful dismissal and violation of his rights as the basis upon which he can appeal against the dismissal. In summary dismissal, there has to be a proof of gross misconduct. In this case, Mark disobeyed a direct disorder from his superior. However, the manner in which it was carried out was not procedural. First off, the dismissal was not in tandem with the usual meaning of this type of dismissal which is instant. The case states clearly that Mark had been asked to work overtime which he refused and a fierce confrontation ensued. Although arguing with superiors is wrong especially in front of other employees, it does not warrant summary dismissal. He was allowed to go home and the next day after he had reported for work; he was given his marching orders after starting his work for the day. In this regards, if indeed summary dismissal was the case, it should have been done the previous day and not the next day after working for some time. Secondly, the order was about working overtime and in many company practices, overtime does not constitute normal working time. As such, it was within his right to choose the next course of action on whether to obey or defy the order from his superior. Working overtime is not a prerogative of the employer but rather the employee after reaching mutual consensus. In a case where there is more work to be done, there are various ways in which this challenge can be handle and certainly not through coercion. In Marks case, it appears that the employer was trying to coerce him to fore gore his own commitments for the company’s sake. Such an unprecedented step to coerce an employee to work overtime constitutes violation of an employee’s rights2. Mark is therefore entitled to appeal his summary dismissal on the basis of gross violation of his employee rights. Dismissal of Simon Redundancy is major factor that is considered by employers when they are dismissing their employees. For dismissal on redundancy ground to be fair, the employer must be able to show consistent statistics in terms of underlying problem that led to the dismissal. To give more credence to redundancy dismissal, the employer must consult widely with other stakeholders as well as the concerned employee. However, regardless of whatever method is used to dismiss an employee, the employer must have a formal meeting with the earmarked employee for dismissal. In this meeting, the employee is given an explanation as to why the employer is terminating the employment contract3. In the case of Simon, the employer used laid down procedures of the company to come up with a trumped charge of poor performance as the basis of his dismissal. First off, this is not a case of poor performance because the underlying problem is change of system from manual to a computerised system. Regardless of human learning capabilities and ingenuity, it is utterly impossible for one to learn new systems in under a month. When the company (Fit & Well Co. Ltd.) was instituting changes, it did not warn the employees to make the necessary preparations to adapt to changes in the work place. Similarly, after making changes in the workplace, it was unrealistic for the company’s management to expect instant adoption of the new technology by workers. Moreover, the company took a very little time (three weeks) to come up with the conclusion that his work performance was poor. Even in normal mathematic calculations, that conclusion could not be true especially after considering that Mr. Simon had worked for that company for over ten years. As such, this redundancy dismissal constituted unfair dismissal. There are laid down procedures within the law that should be followed so that the rights of employees are not violated. From this case study, the employer followed disciplinary procedures of the company to bring about poor performance charge against Mr. Simon. The employer was very tactful in evading the clear cut case of declaring Mr. Simon redundant and instead raised the concern of poor performance. In doing this, the employer disregarded the procedures of declaring one redundant because of the fact that the alleged poor performance was due to change of systems within the company. Due to handling of the case from the wrong perspective, the procedures of declaring Simon were not followed. One of the procedures touching directly on Simon’s case was the failure of the company to consult him personally. Even after the company clearly saw that Mr. Simon was apparently struggling to cope with the new computerised system, they still did not consider another position where he could fit and continue working for the company. Moreover, due to wrong approach to the issue, Simon was not warned about the imminent redundancy dismissal which was a violation of the procedures of redundancy dismissal. In conclusion, the company acted in bad faith to unfairly dismiss Simon from work due to changes at work which the employer had made without warning of the concerned employees beforehand. In this regards, Simon has a claim of violation of his rights as an employee which he can use this claim to challenge his unfair dismissal from work. In cases where employees have worked collectively for more than one year, they are entitled to redundancy or statutory package which should be paid to them. In this regards, the employee is entitled to receive notice before hand or pay in lieu of notice. The calculation of the compensation package is based on the length of time worked and current pay as well as other benefits that the employee was enjoying before being dismissed4. In this case, it is very clear that the employer was trying to avoid redundancy compensation because Simon had worked for the company for a long time and his compensation package would be much. All this was avoided by the employer coming up with modality or charge on which to dismiss Simon without invoking the redundancy clause. However, the charge or reason of poor performance was not good enough to warrant any misconduct or redundancy as the case may be and fire Simon. Having put all these factors in perspective, it is very clear that Simon is entitled to a redundancy benefits depending on the outcome of the case. This is because; he may not want to be reinstated back to his former position and instead opt for compensation. On the other hand, he may want to be reinstated back to work and therefore he will argue on grounds of unfair dismissal with an aim of being reinstated back. Statutory Compensation of Redundancy in the Case of Laura Redundancy payment or compensation is the payment that is paid to an employee as compensation to loss of employment. There are many situations which may lead to redundancy such as if your performance is not commensurate with the expectation of the employer. In other cases, it may involve insolvency or change of administration and sometimes change of location of job. Statutory compensation is usually set by law and in some instances; employees may be under contractual statutory pay. In the event that the contractual amount is less than the statutory amount, the employee has the right to demand for statutory amount under the law5. However, not all employees qualify for statutory compensation because of laid down stipulations of the law. For one to qualify for statutory compensation, one must have worked for more than two years continuously with one employer. There are some special cases in which an employee can forfeit statutory compensation. In the event that an employee is offered another job position that is commensurate with the previous one. The employee will forfeit the statutory pay if he accepts the new offered position and relinquishes it after the trial period is over. The other reason that an employee can be denied statutory pay is when an employee is offered another position and refuses on trivial grounds6. In the case of Laura, her right still stands to claim the statutory compensation pay because of the underlying causes of the problem. From the case, it is clear that Laura worked for Fit & Well centres as a manger for over five years. In this case, the first stipulation for an employee to receive statutory compensation is that she must have worked for more than two years. There is no problem as far as this stipulation is concerned. Secondly, her redundancy came about due to the closure of business activities of the company in Kent which was not her fault. Following this, she did not resign but rather held on to her job waiting for further instructions from the administration. In the event that she had resigned from her post before her redundancy had been declared, she would have forfeited her statutory compensation. Another reason that could have disqualified Laura from statutory compensation is if she had agreed to offer services on voluntary basis. However, she did not offer her services on voluntary basis and there is no mention of that in the case. After making sure that she did not engage in activities that could have automatically disqualified her from getting the statutory compensation, she made it clear that she wanted to cut ties with the company. As such, it was within her legal entitlement to ask for the pay. Another potentially harmful stipulation that can lead one to forfeit statutory pay is when one is offered another post which is considered reasonable and it is turned down. Refusal is not the point of contention but rather the reasons behind the refusal which comes from the employee. There is usually a problem in articulation of this clause because the valid of reasons vary from the point of view of the employer to that of the employee. In the case of Laura, she had been working as a manager and the new offer was to work as a supervisor at the headquarters of Fit & Well centres. From normal knowledge of management, it is clear that a manager is more senior than a supervisor and as such, this new post was slightly lower than her previous post. To cover for this disparity, the company offered her same package and relocation package on top. As much as this was in good faith, the relocation package could not compensate her for the loss she could incur in moving her family. In this regards, moving entails looking for schools for two children, her husband having to find a new job and finding new friends. It must also be understood that the dynamics of life would also have changed for her because she was moving to a more expensive life which required more pay. On top of that, her age was advanced and it would be difficult for her to adjust to new working environment and conditions. In view of reasonable claims of refusal, Laura was entitled to full statutory compensation for redundancy. (Word count 2000) References J. Earnshaw, M. Marchington, & J. Goodman, ‘Unfair to whom? Discipline and dismissal in small establishments’ [2000] IRJ 62, 73 C. Trevor, ' What Space for Unions on the Floor of Rights? Trade Unions and the Enforcement of Statutory Individual Employment Rights' [2006] ILJ 140, 160 R. White, 'Working under Protest and Variation of Employment Terms: Robinson v Tescom Corporation [2008] IRLR 408 (EAT) ' [2008] ILJ 365, 365 K.G. Knight, & P. Latreille, ‘Discipline, dismissals and complaints to employment tribunals’ [2008] BJIR, 533, 555. Read More