Answering the Life Cases - Essay Example

?Answers: a) In this case, I believe that Joe is en d to consider himself the unique winner of the lottery, therefore, he is not legally bound toshare his winning with his stepsister. My opinion is based on the following: Most often, people either cannot afford to pay the whole lottery ticket price or just decide to buy these lottery tickets together with somebody. In such cases, the persons who financially contributed to the purchase own the lottery ticket. If the ticket is a winner, than it must be determined whether there was a partnership relationship between the buyers at the moment of the purchase: a ticket can be bought by several as a gift for one person, one can financially contribute to the buying of the ticket as a donation or two or more persons can buy the ticket together with the firm intention of sharing the prize in case of a winning ticket. In Joe’s case, a partnership relationship usually existed between him and his sister: they used to buy tickets together and discuss the possibility of using their shares of the ticket. According to Beyer G.W. and Petrini J. “If a taxpayer purchased a lottery ticket with the intent and understanding that the proceeds would be shared with others, the courts have treated the proceeds of the ticket as income to all the recipients rather than as income to just the purchaser.”1 However, on that particular week, Joe’s stepsister did not contribute to the purchase of the ticket and the partnership relationship between the two of them stopped at that moment. It is possible to talk about an intention of sharing the profit in the past weeks, when Joe’s stepsister contributed to the lottery ticket’s purchase, which explains Joe’s intention to share the prize. Joe was the only person who bought the ticket and it is clear that under these circumstances the intention of sharing the possible profit did not exist. Moreover, it is well known that the lottery winners receive one cheque from the Lottery Commission. Unless the buyers have formed some kind of trust or legal entity prior to claiming the prize, the cheque will be released on the claimer’s name and he shall be considered the owner of the prize. Thus, in Joe’s case, considering the facts that: 1. no entity/partnership has been created between him and his sister which would somehow stipulate or regulate the possibility of sharing the prize 2. on that particular week, Joe was the only buyer of the lottery ticket 3. the fact that his stepsister did not contribute to the purchase of the winning lottery ticket may serve as proof in Joe’s favour to show that on that week he did not buy the ticket with the intention of sharing the prize with his stepsister I would advise Joe not to worry about having to share the prize with his stepsister. Word count: 481 words b) I believe that Lawrence & Co can be held liable for inducing Joe to conclude the contract by creating a false representation on the capacity of the premises. According to Richards P. (217) “A misrepresentation may be defined… as a false statement of fact that induces another to enter into a contract.”2 It is obvious that Lawrence & Co has made a false statement regarding its premises in order to induce Joe to enter into a contract with it. Even though at the beginning of the negotiations Tim actually believed that the premises were big enough to fit 25 of Joe’s courier vans, the fact that the premises were actually smaller than believed was discovered by Tim during the negotiation process. The disclosure of this discovery at that moment would have stopped the negotiation process and lead to a lost deal for Tim’s business. Therefore, Tim voluntarily hid the discovered fact, believing that there will be no legal consequences against him. Moreover, the belief that all 25 courier vans will fit into the premises was practically the reason that convinced Joe to sign the contract. In the case of Derry v Peek3 the House of Lords concluded that “Fraud is established where it is proved that a false statement is made: (a) knowingly; or (b) without belief in its truth; or (c) recklessly, careless as to whether it be true or false.” Joe said that the premises would fit 25 vans knowing that this is false; therefore, I believe that he can be held liable for fraudulent misrepresentation. Once the fact of fraudulent misrepresentation has been established, Joe has the right to rescind the contract. The Misrepresentation Act expressly stipulates that “Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true.”4 Therefore, the contract should be set aside ab initio and the parties are restored to their pre-contractual position (restitutio in integrum). Considering the fact that Joe’s business has suffered because of the lost time on the negotiation process with a party which fraudly induced him into signing a contract, Joe is also entitled to ask Lawrence & Co to pay damages. Word count: 432 words c) I believe that in this situation, Harold has breached his employment contract provisions by getting a second job within a radius smaller than stipulated in the contract. First of all, he breached the employment contract clauses. Assuming that all the clauses have been properly negotiated between the parties: Joe and Harold, the latter may be held liable for disregarding the employment contract he voluntarily agreed to. The clause preventing Harold to get another similar courier job within a 25 mile radius is legal; it does not provide something outlawed and it mostly refers to the employee’s fiduciary obligations towards his employer. According to Vannata E., “Fiduciary duty is commonly understood to be an obligation of one party to act in the best interest of another party. Employees have an obligation to their employers to act in the best interest of the organization and its stakeholders.”5 Accepting a job for a rival company, in spite of the stipulation of the contract, does not equal to acting in the best interest of the company. Harold was aware of the fact that that specific clause had been inserted into the employment contract because the company owner – Joe intended to expand his business across East Sussex, which was in favour of the company, in its best interests. I believe that by this, Harold has created a conflict of interest. “Conflict of interest represents one such breach. It occurs when the employee's responsibilities to her company conflict with other legitimate responsibilities.”6 Harold has willingfully breached his employee duties. Moreover, in the case of Woods v. W.M Car Services (Peterborough) Ltd.7 it was held that “In every contract of employment there is an implied term:..that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee” By his actions, Harold did damage the relationship of confidence and trust between him and his employer Joe. Moreover, his actions were premeditated and he was aware of the fact that he is violating his contract obligations whilst getting a second job within a radius smaller than specified in the contract. Therefore, Joe is entitled to enforce the contract against Harold. Word count: 372 words d) In Kevin’s case, the situation is the following: Joe giving Kevin extra tasks equals to him working extra hours, overtime. Kevin is forced to deal with new, unexpected tasks in a short amount of time. There are several possible scenarios, depending on the employment contract’s stipulations: 1. It is possible that the initial employment contract did not stipulate working extra hours for Kevin, being based on a fixed hours principle (for example, annual hours contracts, where a total number of working hours must be reached within a year, “amounted to 1589 hours for a typical employee (a calculation of 35 hours X 52 weeks, less 231 hours to account for holidays)”8 In this case, Kevin has the right to refuse working overtime or ask for a contract modification, where payment for extra hours should be stipulated. If Joe has signed with Kevin an annual hours contract, he should abide by the law and the labour principles and pay Kevin for the extra work he is doing for his company. 2. If Kevin has signed zero hours employment contract, the situation changes a little bit. Zero hours contracts offer “the employee a contract of employment, no hours are specified within it, but he or she is expected to work when requested.”9 It is most likely that the employment contract between Joe and Kevin is not a zero hours one, but if it were, that Joe would be obliged to pay Kevin based on the number of working hours, including the hours he spends for executing the new assignments. Moreover, Kevin is obliged by law to work overtime only if the employment contract specifically stipulates this. If it does not, Kevin is entitled to refuse to work overtime or ask for a proper remuneration. Although the UK labour legislation does not specify what the quantum of the remuneration for the extra hours should be, it is for certain that it mustn’t fall under the national minimum wage. On the other hand, some of the employers who ask their employees to work overtime offer free time in exchange. However, Joe cannot make Kevin work more than 48 hours per week. According to The Working Time Regulations 1988 “...a worker’s working time, including overtime, in any reference period which is applicable in his case shall not exceed an average of 48 hours for each seven days”10 Unfortunately for the employees, the national legislation does not impose on the employer the duty of paying for the overtime work of the employee. Therefore, unless Joe feels that he wants to somehow remunerate Kevin for the extra hours, by paying him or offering him free time, Kevin does not have the legal ground to refuse working overtime and completing the tasks Joe gives to him. However, Joe must not forget about the daily and weekly rest regulations, which are stipulated by the Working Time Regulations: “An adult worker is entitled to a rest period of not less than eleven consecutive hours in each 24-hour period during which he works for his employer”11 and “…an adult worker is entitled to an uninterrupted rest period of not less than 24 hours in each seven-day period during which he works for his employer. If his employer so determines, an adult worker shall be entitled to either— (a)two uninterrupted rest periods each of not less than 24 hours in each 14-day period during which he works for his employer; or (b)one uninterrupted rest period of not less than 48 hours in each such 14-day period, in place of the entitlement provided for in paragraph (1).”12 Therefore, if Kevin’s work is limited within the 48 hours limit, complying with the resting hours regulations, for the beginning Joe can give him one or several warnings for not abiding, and if Kevin continues with the hostile attitude, Joe can give him a final warning and if the situations does not change, Joe can then start a disciplinary process and legally dismiss him. Charles’s behaviour does not comply with the employment principles; he is disrespectful towards the company he works for and his employer. First of all, Joe should give a warning to Charles for him being late on work. Normally, Charles should re-evaluate his behaviour and improve it. However, instead of that, Charles comes drunk to work, after being late again. It is obvious that drinking on duty is rude and unacceptable. Therefore, if Joe wishes to legally dismiss him, he should follow the next steps: first, he should interrogate Charles in order to understand if his working capacity is affected. If yes, the employee should be sent home. In some jurisdictions, the labour law regulations impose a medical expertise of the drunken person, in order to establish the level of alcohol in his blood. This would be a good idea for Joe, as to have additional proof against Charles. The next step is to initiate a disciplinary process and allow Charles to be represented by one of his colleagues and explain his improper behaviour. However, being drunk at work is a gross misconduct and the guilty employee needs to be dismissed for several reasons. One of them, besides the fact that the work security should be maintained, is setting out an example for the rest of the employees, stating loud and clear that drinking is unacceptable on duty. I would strongly advise Joe to set all the allegations regarding both employees in written. Also, the employees should have the right to be represented by a colleague or a Trade Union Representative, if they are part of one. Joe’s decision, whatever it is, must be possible to be appealed. If Joe fails to comply with these simple rules, Kevin and Charles are entitled to accuse him of unfair dismissal and this will cause payment for four extra weeks. Word count: 964 words e) Although at a first glance it is obvious that Janet is guilty of injuring both her friend Alex and Arnold, the law stipulates that a company can be held liable for its employees’ actions. Applying the doctrine of "respondeat superior", a company can be held liable for its employees’ actions because it is seen as acting through its employees. A company’s actions are materialized through its employees. Moreover, in case that a third party suffers an injury or its property is damaged as a result of an employee’s actions, it is most likely that the employee will not have enough money to compensate the victim. The legislation is focused on helping the victim recover its losses, and it is most likely that this will happen only if the employer will be held liable. Although it seems unfair to the company-employer, it is fair towards the victim. It may seem slightly abusive at first, but the legislation has provided some defense procedures to the employer, applicable when it is obvious that he is not guilty at all. As mentioned above, the applicable doctrine in such case is the doctrine of "respondeat superior". This “doctrine implies the responsibility of the superiors on the actions done by their employees, agents, subordinates etc when they are doing such actions during their assigned duties”.13 The key concept in this case is during their assignment duties. According to Springer S. E., “for an act to be considered within the course of employment, it must either be authorized by the employer or be so closely related to an authorized act that an employer should be held responsible.”14 In Alex’s case, holding Joe’s company liable for the injury suffered whilst helping Janet complete her work assignment is unfair and illegal. The company policies strongly prohibited the drivers to be accompanied by somebody during their working hours. Janet disregarded the company rules and took Alex with her. This action was not authorized by her employer, she was aware that she was going against the company policy, but she still decided to take Alex with her. Therefore, due to the fact that accompanying the driver was not allowed by the company, Joe should not be held liable for Alex’s injury, as he was not even supposed to be in the van. He was in the van only because of Janet’s disobedience and therefore, she should be held liable for his injury by herself. The same principle applies in Arnold’s case. Janet was supposed to go to another location in order to complete her job assignment, but, again, she used the company property in order to solve personal issues. Driving to the dump was not part of her assignment and therefore, it cannot be considered as within the course of employment. When the accident occurred, Janet was using the company car in personal and not business interest. The fact that she punched Arnold in order to protect the company property is irrelevant at this stage, because she was not supposed to be in that place from the beginning. The use of force was not part of Janet’s duties at all. Moreover, using company property in personal interest equals to theft. Therefore, I believe that Joe has nothing to worry about because it is unlikely that any court will hold him liable for Janet’s actions, just because he is her employer and the incidents happened during working hours. Word count:566 words Bibliography: 1. “Respondeat superior.” Legal explanations. January 27, 2011. 2. Beyer, G. W., Petrini, J. Professor Beyer. Lottery players and winners: estate planning for the optimistic and the lucky. January 24, 2011 < http://www.professorbeyer.com/Articles/Lottery.htm> 3. Derry v Peek (1880) 14 App Cas 334 4. Misrepresentation Act 1967 5. Reilly, P.A. Flexibility at work: balancing the interests of employer and employee. Hampshire: Gower Publishing, LTD, 2001. Print. 6. Richards P. Law of contract.8thedition. Edinburgh gate: Pearson Education Limited, 2007. Print. 7. Springer, S.E. An employer’s liability for employee’s acts. Find Law. January 27, 2011. 8. The Working Time Regulations 1988, Section 4 9. VanNatta, E. EHow.com. Employee fiduciary duties. January 25, 2011. 10. Woods v. W.M Car Services (Peterborough) Ltd (1991) I.C.R. 666, 670 Read More

 

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