Characteristics of Sam as an Employee - Essay Example

178846 Question First of all, Sam does not know if the client really complained against him, or if it is the trick played by his employers to getrid of him, because Sam, under the presented circumstances, would not dare to sue them legally, as there is a possibility of a sexual abuse cropping up against him. He would be frightened, or he would also be humiliated to face such charges and hence, the employers even after dismissing him from service are safe. Here is a very strong possibility of the employers plotting against an employee who could be dismissed in a devious way, and at the same time, could be unable to retaliate against them. If they had dismissed Sam from the job without a sexual abuse complaint in the background, he would have definitely sued them for unlawful dismissal and they would have been forced to compensate him for the money and the career prospectus that he had lost due to their dismissal. As a grave charge of sexual assault is made here, Sam is unable to knock at the legal door. In any job, job security is of paramount importance without which the mental, physical wellbeing of the worker could be ruined combined with a disastrous career route. “The employee who loses his or her job in an economy which uses market exchanges to direct labour towards remunerative employment is immediately deprived of his or her major source of wealth, and will possibly suffer long-term impoverishment as a result of unemployment. At the same time the worker is excluded from the workplace which is likely to constitute a significant community in his or her life,” Collins (1992, p.15). The worker loses his dignity and self-confidence to find another job. Even he gets an alternative job; he would find it difficult to work freely in that post being haunted by the earlier unsavoury memories. There are psychological cases where the person was scarred for life. The importance of job security is so high that almost all the governments have chosen to pass as many laws as possible to create an atmosphere of security for the worker. “This interpretation of the underlying justification of legislation against unfair dismissal suggests both why many legal systems have passed legislation which improves a worker’s job security and why none of these laws goes so far as to grant the employee a property right in his or her job,” Collins (1992, p.21). Even though ideologically the Common Law proclaims that workers should be protected from unfair and wrongful dismissals, its position is seen to be weaker here mainly because the law has to respect the autonomy of the private sectors and maintain neutrality between conflicting interests. It also has to protect the equality of treatment of all the parties concerned, whereas the Employment tribunals have more power to hear the worker’s side of the story. There are many points here, which look suspicious and at the same time, they might work in Sam’s favour if he decides to sue the company. He has not seen or read the complaint. He is unaware of the person who has made the complaint. A copy of the complaint, contrary to normal proceedings, was not given to him. He is not even definite if any such complaint exists at all. There are a few mistakes that were committed by Sam. He did not demand for the copy of the complaint made against him. He did not explain to the company that he did not commit such an act. Being ‘too shocked’ cannot be carried on for many days. Before accepting the dismissal order, he did not ask the company to give reasons for dismissal in writing. It was his fault to accept the final salary without protest, because in any company, it is easier to fight with the management when the person is still an insider and more difficult as an outsider. His acceptance of the dismissal letter and the final payment could be presumed as admittance of guilt. It is still peculiar that the person who has charged him of sexual misconduct neither went to the police nor pursued the matter against Sam. Another intriguing factor here is why exactly the person waited for three long months before approaching the company to make a complaint against their employee. It is interesting to find out what direct evidence, if any, exist in support of the accuser’s claims of Sam’s misconduct with her. If such evidence does not exist, the company or Sam himself should have found out if there are any circumstantial evidences in existence to support the claim. The employer has acted in a highly arbitrary manner. The company has neither given proper notice, nor the proper notice time salary. In a way, once again, it is Sam’s mistake for not insisting on further terms and conditions in writing while accepting the appointment letter. Acceptation of a legally un-enforceable letter can always create greater problems with a cunning employer. The company definitely must have done it to safeguard its own interests. It might have been issuing unclear letters of appointment to avoid later complications with the employees. It might have been in the habit of taking the signatures of the employees on the letters where the terms and conditions are not in favour of the employees. Even where they are mentioned, they might give room to confusion. Some employers are of the habit of cheating the employees by making them to sign these confusing terms and conditions and Sam has already done so. As Sam has already earned his commission by bringing profit to the company, naturally he is entitled for his unpaid commission. He is also entitled for a good recommendation reference from the company as promised by them. As his annual gross salary including the commission should be £23,000, he should have been compensated proportionally. The residues of the non-contributory pension scheme could easily be transferred into the next employment. If not, Sam should be able to further the pension scheme by paying his contribution after making sure that the company has made all the payments from its side. Also he should find out if the pension scheme could be availed off immediately as he ceases to be the staff member of the Company. It is also peculiar that Sam did not worry about the absence of ‘leaving or termination terms’ on his appointment letter while accepting the job. It is equally strange that he signed a letter which says that he is not entitled to make any statutory claims over the company for which he is going to work. These two circumstances could work against Sam if he makes a claim. Despite signing such a letter, Sam still should find out how the labour acts could grant him relief. He could be entitled to compensation for losing the car for private and company use, and other payments that go with abrupt termination of the employment for which he had neither planned nor had made arrangements for any replacement work. It is worthwhile to contact the Unions to get more information. It is also worth the trouble to contact a labour lawyer who has extensive dealings with matters of unfair dismissal from service. Another point that will definitely stand by Sam is that he might have been on sick leave on the day mentioned by the accuser. This is a very strong point in his favour which can bring down all the accusations against him in a crash. But it depends on the accusation itself. Before disclosing that he might have been on leave on that particular day, it is important for Sam to find a copy of the accusation itself, so that the accuser or the company (assuming that the company is either acting on its own for its benefits, or siding with the future client) might alter the date on the accusation once it comes to know that Sam was absent on a particular date. In addition, Sam must be maintaining a work sheet report which could show the details in his favour. Also his weekly reports to his superiors could bail him out. Additional two weeks’ pay is a contentious matter. For an employee of Sam’s cadre as Style Manager, the pay of dismissal should be more. As he has joined in December 2001, his long stay in the company with clean record should be able to help him while making him entitled for a bigger compensation that two week’s pay. Provisions with the help of industrial tribunals could be of more assistance to Sam. There is another point that could come in Sam’s favour. Any company that sends its employees on field work, at one time or other will get accused of some wrong doing by the employees. Till it is proved beyond any doubt that the employee was actually guilty, it is the duty of the company to stand by the employee, which kozeeroomz did not do. Even if the company, owing to its nature of work is worried about losing its reputation due to a scandal, still it should have conducted an internal enquiry into the matter and give an opportunity to Sam to clarify his stand. It is rather strange that company took neither stand, nor allowed Sam to clarify himself to the accuser, but only treated him as though he was guilty. Company will definitely retain its own argument that as Sam did not offer any explanation on the contrary, it assumed that their employer was guilty and there was no necessity for them to compensate the employee by termination pay, because termination in question came into existence only because of the regrettable behaviour of Sam and hence, the company owes him nothing. Compensation for unfair dismissal from service is governed by the Employment Protection (Consolidation) Act 1978. If the discrimination comes under racism, then the victim can be government by Race Relations Act 1976 and will be entitled for a compensatory award. Here the grounds of dismissal become very important. The upper limit on compensation awards until 1993 had been £11,000. The European Court of Justice in a ruling removed the limits in discrimination cases and the victim of a discriminatory dismissal can complain to European Court of Justice now. (Marshall v. Southampton and South-West Area Health AuthorityNo. 2 [1993] IRLR 445. It is important to understand that in this case gender issue was involved. After the 1971 act, employees can challenge the arbitrary dismissal from employment. Section 205 of the 1996 Act permits a claim against unfair dismissal if an industrial tribunal is approached. The jurisdiction of the industrial tribunals had been exclusive because there had never been a corresponding remedy in the Common Law against unfair dismissals. But now work is accepted as part of life and common law has evolved accordingly. Wallace v United Grain Growers Ltd (1997) 152 DLR (4th). “Today employees in the United Kingdom are entitled to receive statutory minimum notice of termination, minimum increasing with length of service,” Dickens (1994, p.44). The entire episode grinds into Sam’s own mind and perspective of his dismissal. If he feels that he was unfairly dismissed, he has to make an unfair dismissal claim to an Employment Tribunal. It is for Sam to show and prove that he was unfairly dismissed and the employer has to show a valid reason for Sam’s dismissal. Also the company has to show that under the circumstances it has acted reasonably without bias and with sympathy and consideration. The company has to show in the court that it has followed the statutory minimum dismissal procedure and has investigated the charges without prejudice or favour. Sam will be in a position to strengthen his claim if he had not been told some company rule or procedure of dismissal by his employers while taking up the employment. As Sam’s appointment letter does not mention any terms and conditions with reference to the abrupt disciplinary termination or a sudden dismissal by his employer, he remains ignorant of the company rules. Here not knowing the rules on the surface will definitely go against Sam; but at the same time, it might work in his favour if he could claim that he was totally ignorant of the facts as he was never been informed. At the same time, if the company could prove that they had taken steps to investigate the charges and had arrived at a wrong conclusion due to false presentation of facts made to them, they might not be liable for wrong dismissal. Instead they may have to reinstate Sam in his post with suitable compensation for the loss of working days owing to the unfair dismissal. Sam can prove that he did not get the benefit of any normal disciplinary procedure through which he would have been able to present his side of the story. He can make a case now of both wrongful and unfair dismissal. Conduct of an employee could be a ‘potentially fair’ reason for dismissal and the alleged sexual charges against Sam could be termed as a fair ground for such an instantaneous dismissal. This, of course, have to be proved by the company that the charges, after preliminary enquiries, seemed to be true, or provided enough ground for such dismissal. But the fact remains that Sam was entitled to get a written statement by the employer detailing the causes of his dismissal and Sam did not get it. The company will definitely show that it had an overwhelming reason to dismiss Sam to save its own reputation. Still it has to show clearly that other options were thoroughly considered before the drastic step of dismissal was chosen. He can take free advice in the matter from The Advisory, Conciliation and Arbitration Service (ACAS). He can also get free and impartial advice from his local Citizens Advice Bureau (CAB). Community legal service too would be helpful. If he is a member of a Trade Union, he could anyway get advice and support from the Union as his right. Employment Tribunals, whose only function is dealing with legal disputes, should be approached as a last resort, because it is always better to sort out the problems by discussion and persuasion. If that does not work, Sam has no other way out of the problem and has to approach the Tribunal, which could be a rather long-drawn affair. Naturally the Tribunal will look into the side presented by the employer. It would find out why the company so readily agreed that the charges were true. It would find out why the company did not investigate further and how it satisfied itself. The company has to give satisfying answers about its investigation methods, because direct dismissals without giving proper time for the employee to explain are not appreciated. (Turner v D.T. Kean Ltd [1978] IRLR 110). Unfair dismissal is still considered to be a comparatively new concept. The decision of House of Lords in Polkey v Dayton Services Ltd (1988) is a landmark on the subject. After this decision, procedural requirements of dismissal became more important. This was followed by the Employment Act 2002 which laid down procedural protections and safeguards against arbitrary dismissals. Question 2: Sam’s letter of appointment does not lay down any terms and conditions or a contract and this might not work in Sam’s favour. If there had been an employment contract, the company could have been sued for breach of contract. Since that is not the case, Sam has to depend on unfair dismissal and proving it. The intention of the parties, here especially of the company in dismissing Sam has to be uncovered and the rest of the case will be based on it. (Massey v Crown Life Insurance Company [1979]). Sam has to find out the notice period of the company, as he was paid only two weeks’ salary. This notice period and salary will prove important. “In cases where the employee is dismissed without due notice whether with or without wages in lieu of notice, the effective date of termination is a creature of statute..” Anderman (2001, p.46). As he has already completed one year’s service and beyond, Sam is entitled to claim benefits against unfair dismissal. As Sam is dismissed with a dismissal letter, it is not difficult for him to prove that he had been dismissed. But it is difficult to prove that he has been unfairly dismissed. As there is no mention of any reason for his dismissal in his letter, this fact should work in his favour. He also can prove that the company did not follow the statutory minimum dismissal procedure and hence, there was no fairness in his dismissal. Acas also offers free and impartial reconciliation and the period is seven weeks and Sam might be able to get benefited without going to the tribunal. Sam must remember that he should approach the Tribunal within three months of his dismissal, because the time relaxation by the tribunal is done under highly exceptional circumstances, and Sam’s circumstances cannot be categorised as exceptional. Sam can claim that dismissal was not for a fair reason, as the charges were not proven. Showing the above reasons, he can prove that the dismissal was not done fairly. He can also prove that the dismissal was done abruptly without giving him any opportunity to prove otherwise. He had no health problems which would have resulted in continuous absence, he had qualifications for the job and he was not incompetent. The only reason for dismissal had been an unproven charge of sexual suggestions by an unknown individual, who made the charges after three months of his visiting her home. This could have been a ploy to get free services from the company on terms that she would not go to the police and ruin the reputation of the company. Sam can also claim his pension sum if the case proves beyond the limit of reinstatement. Employment tribunal is always overworked and Sam should be prepared for a delay, because since its inception in 1964, the tribunal has been increasingly overloaded with ‘new and complex jurisdictions’ keeping with the time. “This combination of complexity and volume of case-load has led, inevitably to many of the attractive features of an administrative tribunal being reduced or lost. In particular, this has resulted in delays in cases coming to hearing,” Doyle (1998, p.22). Tribunal can arrive at a decision without hearing, or without full hearing if full consent from both the parties is available to do so. If the respondent has not contested the case, the case could be immediately disposed off in Sam’s favour. If the tribunal feels that Sam is not entitled to the relief sought, the disposing off the case could be faster. Here, if the respondent contests the case, it would go for a preliminary hearing, especially if a compromise arrangement cannot be worked out. Tribunal will also go through the structure of the fairness inquiry starting from the proof of dismissal and noting the unsatisfactory omissions to weigh the fairness of the procedure and remedies involved. Automatic unfairness might not help Sam, as the company has a reason, proven or not. Tribunal will see if a date was set for the dismissal and in Sam’s case it was not done. For the company to show that it was not an unfair dismissal, it is necessary to set a date (Patel v Nagesan [1995] IRLR 370). The tribunal might take action according to the basis for unfair dismissal. The remedies for unfair dismissal (if proved in Sam’s case) could be reinstatement, re-engagement and compensation. “Reinstatement should not be ordered if it is ‘not practicable’ for the employer to comply with it or it would be unjust to do so because the employee contributed to the dismissal,” Bowers (2005, p.391). (Mabrizi v National Hospital for Nervous Diseases [1990] IRLR 133). Unfair dismissal compensation usually is given in two separate ways: Basic Award and Compensatory Award. The Tribunal will take into consideration facts and figures connected to immediate loss of wages, future loss of wages, loss of benefits like use of car, accommodation etc. It will also consider the expenses that might be incurred in getting another job without much notice and the desperation of the procedure. It will consider how the pension scheme will be affected and the amount Sam might lose on account of the pension facility termination. It has to weigh in monitory terms the loss of future employment protection because of the manner of dismissal. This will usually be deducted by the contributory fault, if any. Sam has a strong case in his favour as he was neither warned by the company nor properly charged. An accusation cannot be taken as a ground for dismissal. “Criminal charges or convictions outside employment: These should not be treated as automatic reasons for dismissal. The main consideration should be whether the offence is one that makes workers unsuitable for their type of work. In all cases, employers, having considered the facts will need to consider whether the conduct is sufficiently serious to warrant instituting the disciplinary procedure,” Anderman (p.420). BIBLIOGRAPHY: 1. Anderman, Steven (2001), The Law of Unfair Dismissal, Butterworths, London. 2. Bowers, John (2002), A Practical approach to Employment Law, Oxford University Press. 3. Collins, Hugh (1992), Justice in Dismissal, Clarendon Press, Oxford. 4. Doyle, Brian J. (1998), Employment Tribunals, The New Law, Jordans, Bristol. 5. Dickens, Linda (1994), Comparative Systems of Unjust Dismissal, The British Case, Annals of the American Academy of Political and Social Science, Vol. 536, Employee Dismissal: Justice at Work. (Nov., 1994), pp. 43-55. 6. Slade, Elizabeth A. (2000), Tolley’s Employment Handbook, Tolley, Croydon. 7. Read More