Opting Out of the 48 Hour Week - Essay Example

? Introduction a) Advise Mark generally and in particular as to whether he is likely to succeed in any claim against Fit &Well Ltd, and if so, what claim(s) and why. The case involves the decision taken by the management to dismiss Mark for failing to comply with the demands of the company. Prior to his dismissal, he had been requested by Rebecca (Head of finance department) to work overtime due to pressures within the company. Apparently, there has been a shortage of employees prompting objective measures to be taken to save the company from financial loses. As it appears, all other employees apart from Mark agreed to work overtime. In his submission, Mark indicated that he was not under any contractual obligation to work overtime. This infuriated Rebecca who decided to take the matter to the manager. However, it is also indicated that there was always bad blood between the two employees, and this seemed to be an opportunity to settle the scores. The dismissal of mark from the work is unacceptable and therefore he has the right of appeal. While the law provides the employers with the prerogative to dismiss employees for gross misconduct and without warning, the case of Mark is different. Firstly, the company should have let the employees know of the staff shortage. Secondly, such employees ought to have been requested to offer themselves for overtime work to compensate for losses incurred due to such shortage of employees. As it stands, the request to have Mark work beyond his normal hours appears to be an ambush. In addition to that, the manner in which the information was passed to him is also wanting. It is vital to note that employees just like employers, have their personal rights1. On that material day for instance, Mark had an appointment with his girlfriend. He made such arrangement because he had not been informed of any changes by his boss. Therefore, it seems that the company suffers from lack of good communication and relationship with the employees. Thirdly, the dismissal is unjustified based on the fact that when Mark was employed, he signed a contract that indicated the time that he was to be in the job. His decision however mean it may seem to be was justified. There was no prior complaint that he failed to provide quality work because of incompetent or any other factor. It therefore seems that he was a dedicated person who understood his rights well. It seems that the management failed to conduct its independent investigations to ascertain the allegations2. Relying on the information provided to them by a fellow employee was wrong since there could have been other reasons which could have prompted Mark to take the decision he did. Even if this was a gross misconduct according to the management, law requires that investigation is carried out. For instance, it is indicated that Rebecca and Mark had a malfunctioned relationship which affected their communication. It is therefore possible that this was a malicious act meant to punish Mark by dismissing him. She may have passed communication to other employees about the overtime work and failed to let Mark know in advance. The management therefore was in contravention of the statutes guiding dismissal. There are various unfair grounds through which one may be dismissed. They include lack of good reason, being asked for flexible hours and also if one refuse to work overtime. From the case, it is outright that the firm did not have objective grounds to dismiss Mark. He was dismissed immediately even though he was innocent. He had a right to choose either to work or not. Employees have their flexible time which they may choose to offer or not. Depending on prior communication with the company, employees may choose to comply or refuse. From the above mentioned facts, it seems that Mark is entitled to make a claim of unfair dismissal and get remedies. The law gives him the right to make such a claim through a trade union3. Some of the methods that would be used to address this issue may include mediation and arbitration4. Instead of taking this issue too court, Mark may decide to use a mediator who will facilitate communication between him and management. The facilitator may be a member of a trade union who may choose to remain neural but facilitate need for amicable solution. This is imperative in the sense that it will enable the management understand the real causes of problems instead of depending on unreliable sources. On the other hand, arbitrators may choose to take up the case and follow the law in making decision either in favor of the company or Mark. Such people conduct thorough investigation before making any decisions. In conclusion therefore, Mark is entitled to compensation from the company for any damages that may have been caused on him. This may include providing him with full salary in all the days that he will have spent outside while seeking for justice. He is also entitled to reinstatement and given back his rights as it were before the dismissal. A court might also stipulate any other compensation according to what it may deem necessary. b) Advice Simon as to any right and remedies he may have against Fit & Well Co. Ltd It is imperative to note that a company has the right to institute any internal changes. With the current technological advancement for instance, most companies want to ensure that most of their activities are automated. In the case of Fit & Well, the decision to replace the traditional paper based-system to computerized booking system. This decision may have been arrived at for the purpose of ensuring quality, efficiency and speed. However, it appears that Simon is not conversant with the new development. A company has the right to dismiss any employee who appears less productive in the working environment. These are employees who cannot meet the expectations of a given company mostly because of their incompetency or lack of experience. However, according to this case, it seems that the company owes Simon remedies. While the dismissal statutes agree on the need to dismiss nonperforming employees, it also provides exceptions. It is stated that unfair dismissal may occur where a company may not provide an employee time to adjust to a new system. For instance, it is indicated that Simon had worked for more than 10 years using the traditional methods of production prior the introduction of the new system. In all that time, he must have provided the company with quality work, otherwise he could have been declared redundant. It follows that he is a person who can perform given time and support required. It is also common sense that if a new technology has been introduced, it affects many people due to the requirements of new skills. Law requires that before one can be dismissed for any incompetence, they should be given an opportunity to learn5. One of the main requirements for instance is for the company to train such employees to make them more competent. If the company decides to have such developments, employees need to be informed and given time to change. However, as it appears from Simon’s case, the employers were working under the assumption that Simon would manage the new technology. They expected the speed of doing work to be better than before. This is unfair considering the fact that Simon dedicated all his time for the company and therefore may not have had time to improve on his skills. The fact that Simon did not tell the company that he could not handle the new technology is understandable. Firstly, he may have feared that by telling the company management that he could not work with the new technology for lack of skills, he could lose his job. It is therefore clear that the company did not train Simon how to use the new technology. According to the legal requirements, this culminates to unfair dismissal on the part of Simon6. It is the responsibility of the company to ensure that he was given time to upgrade and acquire necessary skills. This appears to be a malicious act based on the fact that Simon had worked for the company for over 10 years. It means that he is a competent man who needed to be given a chance to prove his worth with the current changes. Simon has therefore right to compensation or reinstatement. In the former category, Simon is entitled to payment for the damages caused by the company. He can claim those damages based on the above legal point of view. However, if the company decides to declare him redundant, then statutory payments should apply. He is qualified for such payments and therefore the company should be willing to comply. On the other hand, the court may rule on his favor by compelling the company to reinstate him immediately. As indicated before, Simon is a performer, and should be given time to prove that. The company was quick to dismiss him and this is tantamount to unfair treatment. It is therefore unacceptable giving Simon an advantage of receiving compensations. c) Advise Laura as to whether or not she is entitled to redundancy payment Due to various factors within the working environment, a company may be forced to lay off some workers. This is especially when there is need to cut down the cost of operation. The business laws give the company managements the right to conduct such redundancy programs. However, redundancy has to done within the legal framework. Before this can be carried out for instance, it will be imperative that the company notifies the employees through writing in advance. Apart from that, the law requires that the company compensates the employees through the statutory redundancy payment7. In the case of Laura and her company, she is not entitled to statutory redundancy payment. According to the statutes expounding on qualifications of redundancy payment, it is indicated that if a company provides an alternative job, then the individual is not entitled to this benefit8. Secondly, the company should have followed the requisite consultative procedures before taking the action of redundancy9. From the excerpt, it is clear that the company had followed the right procedures and therefore its intension to take this action was not only justified but important. After assessment of employees, it was found that Laura had exceptional skills and competency. This prompted the company to offer her an alternative job though in a different location. According to the provisions within the statute, one is not entitled for redundancy payment after receiving this offer. The company was ready to maintain Laura’s status by offering her jobs. Secondly, if an alternative job has been offered, one has to have rational explanations as to why they do not want it. In Laura’s case, she indicated that she was not comfortable because of family reasons. While this is an important factor, it is not convincing and acceptable at this point. For instance she stated that she wanted to remain at her current place because of her husband’s job and her children. It is imperative to note that the company had played its part in ensuring fair treatment of Laura. All that was remaining is for her to avail herself for the job. In addition to that, the company had a substantial reason to dismiss Laura. One of the major reasons why one would be dismissed is if they refuse to comply with changes within a company10. Changes are inevitable at times and employees will be required to comply so long as such changes are done in consultation and within the law. In this case for instance, the company considers that Laura is not willing to sacrifice her comfort zone (her family) to work in the new environment (about 200 miles away). Under this circumstances, the company is left with little option that to dismiss her and focus on replacement. It is not the company’s responsibility to engage in family affairs and therefore the management did not have solution to her problem. From a legal point of you however, the company had done its best in ensuring that she maintained her employment. In my advice therefore, I would inform him that he was not entitled to statutory redundancy payment from her company. Her decision to reject the offer to the new job can be interpreted as refusal to work. The company is therefore not liable for such conduct and cannot compensate her. 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