Advice to Dave on Matters of Employment Tribunal - Coursework Example

? Introduction Dismissal is a common phenomenon in at work, which is instituted by employers. Lack of competence, sicknessthat interferes with the quality of services and substantive reasons justify dismissal. If an employee is caught in situations that may tarnish the reputation of a company, he/she can also be dismissed. This is especially if such an individual has committed criminal acts. The company may dismiss them due to real or perceived losses, which may be incurred within the company. For instance, depending on the nature of a criminal act, customers may dissociate themselves with such a company. In the case of Davis and his company management, the decision to dismiss may appear malicious but it was meant to protect the reputation of that institutions. However, if an employee has been found in contravention of the laws governing their employment, they still have rights to fair trial and access to a lawyer. A free and fair disciplinary committee hears and determines the case based on evidence gathered1. In the event an employee feels that they were unfairly treated, they can seek assistant from their trade unions or employment tribunals. Petitioners are encouraged to ensure they exhaust all possible avenues of justice before filing their cases at the tribunals2. The latter take a long period before the hearing and making any determination of the case. The following discussion focuses on a case involving dismissal of Dave from his work under some controversial circumstances. The main aim is establish if he is qualified for any remedies if the employment tribal rules on his behalf. Statement of the case The case involves a Dave who was a manager at the Pamper. He had been in the company for a period of more than 11 years. His dismissal occurred on 26 May 2012 under certain controversial circumstances. He had entered a shop to purchase some goods when he saw his friend. He left the queue while still holding the items but let the till assistant know about it. It is at that time that the store detective, acting on the perception that he was a thief, decided to arrest him. His case was dismissed immediately for lack of sufficient evidence. However, his employers did not take the matter lightly and therefore decided to constitute a disciplinary committee. After gathering information from the store detective and Janice who was Dave’s assistant, they dismissed him. Anomalies in the determinations of the case From the analysis of the case, there were various legal anomalies. Firstly, Dave was denied the right to a fair trial. He was denied permission to be represented by his lawyer. This is against the Article 6 of the constitution, which requires defendants be represented by such legal experts3. In R (Seymour-Smith) v Secretary of State for Employment case, the judge ruled in favour of the plaintiff. The dismissal was unfair due to discrimination against the plaintiff. Dave was also discriminated and treated unfairly by being denied right to an attorney. This was unfair for him from a legal point of view because he appeared overwhelmed. All other members were against him including the disciplinary committee, which relied on biased information. Secondly, the evidence was gathered in a hurry and was not analyzed to ensure it was reliable. Some of the witnesses such as Janice is said to have had some disagreements with Dave several times. It is therefore possible that her testimony was biased and malicious. She might have wished Dave away so that she could take over his position. It appears that the employers were determined to dismiss Dave. They were only focused on information that supported the fact that he had purposed to steal. However, this is unrealistic since he had never done that before, and his status at his job did not allow him to behave that way. These gross anomalies should form a basis for seeking redress to the employment tribunal4. Dave, should be free to file his petition immediately with the employment tribunal, to receive fair hearing and probably be reinstated and reemployed. His decision not to appeal his case through the same disciplinary committee is justified. It is possible that he would not be allowed to have his lawyers. Dismissal of employees is a common phenomenon in the working environment and supported by industrial law5. Provision of quality work at work is imperative. The employees are expected to avoid any circumstances, which may lead to loss of company’s reputation. However, the dismissal of Dave appears to be biased and unacceptable. The industrial law stipulates various reasons that may prompt employers to dismiss their employees. Before determining whether Dave was liable for this dismissal or not, it is imperative to focus on such factors. Statutes applying to the case The employee rights Act (1996), was enacted for protecting employees from unfair treatment. It addresses issues such as unfair dismissal, right to a dismissal notice and reasons, and right to a tribunal. In the first category, employees can only be dismissed from employment if they are incompetent, sick to the point of not been able to perform their duties or engaged in criminal acts. The employee has to be noticed of dismissal and allowed to present their defense. The Act requires that the disciplinary committee carry out independent investigation. There is need to have sufficient and credible evidence before an individual is dismissed. Trade union and labor relations 1992 Act 1992 This was enacted to give the employees the right to belong to trade unions and also to seek any redress. If Dave belongs to nay of the Trade Unions, he has a right to resolve his issue with the assistant such an institution before going to the employment tribunals. Equality Act 2010 This Act ensures that not all employees are discriminated against based on their gender or any other factor. Individuals have the right of expression in their own capacity. However, as it appears, Dave was denied the chance to express himself due to the personal differences with Janice. The fact that he was denied access to a lawyer is a form of unequal representation. He can therefore use this statute to argue his case. Protection from harassment act 1997 This is closely related to the equality act. It gives employees the right to sue for any form of discrimination and isolation in the working environment. Dave can therefore rely on these provisions to seek for redress in court. Factors for a fair dismissal These factors are based on the provisions within the Employment Rights Act (1996). The industrial law provides provisions that constitute fair trial. To prevent any unfair dismissal, the law is clear on the grounds of dismissal. The following are some grounds upon which dismissal is justified: a) Substantive reason In the case of Dave, carrying out an independent and unbiased investigation was necessary. The decision made to dismiss him should have been based on the objective information collected from different people. It is surprising that the court found no sufficient evidence that would prompt prosecution. It appears that the information obtained from some of the key witnesses was biased. For instance, it is indicated that there was a bad blood between Dave and his assistant, Janice. They had disagreement for a couple of times while conducting their daily routines. It is therefore possible that her testimony was biased6. She would be happy to see Dave leave the company to occupy his position. They also gathered the information from the store detective, who only reported what he had seen. Reliant on such information without getting the gist of the matter was legally wrong. For instance, the management should have not relied fully on the information presented by Janice. She has her own motives based on the relationship between her and Dave. Wilson v Racher is a case law that Dave should rely on to argue his case. Under this case law, the judge ruled in favour of Wilson who had been unfairly being dismissed for being rude to his employer. However, his behaviour had been prompted by what the employer had done to him and therefore dismissal was unjustified. Dave may also rely on this because the evidence given by Janice was because of their ill relationship and therefore cannot be trusted. Therefore, there was no substantive reason to dismiss Dave. He should pursue justice to fight for his rights. b) Poor quality work This is another reason that would constitute dismissal7. If the employee is found to be incompetent, the management has the prerogative to take necessary actions including dismissal8. However, there are situations where the employer is not allowed by law to dismiss employees for incompetency. This is especially if there are any new developments such as installation of technology9. The employees must be given enough time to learn with the assistance of the employer10. According to the case provided, it can be deduced that Dave was competent in his work. This is explained by the fact that he had worked for more than 11years within the company. This was therefore not the main reason prompting his dismissal. c) Statutory restitution Under this, the management may be dismissed an employee because of continual contact with such a person constitutes breaking of law11. The argument here is that such an individual has already broken the law and therefore continual contact with them is interpreted as colluding with them12. The justification to Dave’s’ dismissal may have been built on statutory restitution13. The company was afraid that its reputation might be tarnished by continuing to establish relationship with him. However, as indicated above, there was no evidence to prosecute him; therefore, he could not tarnish the company’s name. d) Sickness Dismissal of an employee may also occur if they are unable to perform their duties due to illness14. In Dave’s case, this provision would not have applied depending on the fact that he was not ailing. None of the above reasons for dismissal would justify Dave’s case. Advice to Dave on matters of employment tribunal Dave should find it necessary to pursue justice from the employment tribunal. This is a legally constituted body with the ability to determine cases involving any forms of conflicts between the employers and employees. The petitioners file them within a stipulated period after a conflict has occurred. However, it is necessary for the petitioners to exhaust all other legal avenues before filing their cases with the employment tribunal15. In Dave’s case for instance, I would advise that he seek help from a trade union if he is a members. In the Gayle v Sandwell and West Birmingham Hospitals NHS Trust [2011], members have a right to belong to a trade union and participate fully in its activities, including seeking for redress when there are conflicts at the place of work. Dave may seek assistant from the trade unions which he is a member. These bodies are legal and therefore have the ability to listen and offer solutions within a short period. This is unlike a tribunal, which can take more than 30 months before cases can be heard and determined by the court16. This is especially depending on the complexity of the cases filed. However, focusing on how the case between Dave and the management was solved and determined, it would be prudent him to seek assistant from the employment tribunal17. The disciplinary committee, constituted by the management, appeared to be biased and unfair to him. This explains why he was not willing to appeal the case for fear that he would have been denied fair hearing. I would therefore advise him to seek assistant from the employment tribunal but do it urgently. It is expected that one should file a petition three months after a conflict has taken place18. Since he was dismissed in 26 May 2012, he is expected to file his petition to the employment tribunal before or on 26th of August same year. Failure to do this would lead to dismissal of the case19. There are three main things that he should be ready to provide at the employment tribunal20. They include his address, information about the respondent and the details of the complaints21. The former will include his names and personal constants through which the court can contact him. He is expected to give details for his aggressors so that they can be contacted and expected to appear for hearing22. Finally, he should be prepared to give an account of what had led to his dismissal. He is expected to tell the truth to assist the court carry out its independent investigations to verify such reports23. This court is given the power to carry out such investigations to give objective and impartial judgment24. This explains why cases filed in a tribunal may take a long period. From the above analysis of the employment tribunal, Dave is entitled to remedies. After an unfair dismissal and unfair hearing, Dave has rights to receive remedies. There are three main types of remedies, which he is entitled to receive which the employment tribunal may decide to offer. They include reinstatement, re-employment, and/or compensation. a) Reinstatement remedy After an unfair treatment and dismissal, Dave has the right to demand for reinstatement25. This is the process by which the former status or position of an individual becomes restored26. As stated above, he was a manager in his company, who worked diligently for its success. The labor law requires that if an individual has received unfair hearing or denied right to a defense lawyer, they are entitled to this right27. Apart from that, the case was not only biased, but also based on insufficient information28. HSBC Bank plc v Madden is a case that Dave would have used to argue his case. Under this, the court ruled that the employee had been dismissed unfairly even after the police had said there was no evidence to link the employee with theft. Dave may rely on this ruling to get his job position back. Re-employment and/or compensation In certain instances, the industrial court may demand that unfairly dismissed candidate be reemployment29. In this case, Dave will receive new scope of employment as if he is applying for the first time. However, the reemployment is followed by some compensation depending on the time that has been wasted30. He is entitled full compensations equivalent to what was paid to him prior the case. In conclusion, dismissal is provided within the law. If it is carried within the legal framework, it is justified. In case of a conflict between the employers and the employees, the disciplinary committee ought to carry out an independent investigation to assist in making judgment. Where employees feel that dismissal was unfair, seeking the assistance of a tribunal becomes imperative. Bibliography Alfredsson, Gudmundur; Eide, Asbjorn. The Universal Declaration of Human Rights: a common standard of achievement. 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