员工申述1

员工申述1 1. Five permissible reasons for dismissal can be placed, a. Incapability, which covers issues in relation to health and mental capabilities in addition to competence including skill and aptitude. b. Misconduct, A way of behaving at work which is considered by the employer to be undesirable and unacceptable. For example, bad time keeping, theft, or abuse. c. Redundancy, providing the method for selection was fair and the procedure was properly followed. d. Failure to have qualifications relevant to the job, for example a lorry driver who is disqualified from driving. e. Going out on an unlawful strike (as long as the employee was not singled out for this treatment and all striking employees were treated alike) 2. Unfair dismissal occurs where a worker is sacked by their employer and the worker believes the action is harsh, unreasonable or unjust. There are several ways your dismissal could be unfair: a. Your employer does not have a fair reason for dismissing you (e.g. if there was nothing wrong with your job performance) b. Your employer did not follow the correct process when dismissing you (e.g. if the have not followed their company dismissal processes) c. You were dismissed for an automatically unfair reason (e.g. because you wanted to take maternity leave) In considering an employee’s complain of unfair dismissal, the Employment Tribunal will consider there fundamental questions: a. Was there sufficient permissible reason for the dismissal? b. Did the employer act reasonably in the circumstances? c. How was the dismissal carried out in term of the disciplinary procedure? 3. No matter what the other factors in the situation are—if the reason for the dismissal can be shown to be one of these specific reasons—it is likely that the dismissal will be found to be unfair if the employee takes a complaint to the Employment Tribunal. The dismissal may be automatically unfair. There are six examples that would automatically make a dismissal unfair: ?Dismissal on maternity related grounds ?Dismissal for taking, or proposing to take, some action on health and safety grounds, for example trying to bring a health and safety issue to an employer’s attention ?Dismissal for having sought to exercise a statutory employment right, for example alleging that an employer has infringed an employee’s right to a minimum period of notice, or any form of unlawful discrimination ?Dismissal of a shop worker or betting worker for refusing, or proposing to refuse, to be shop work on Sundays ?Performing or proposing to perform duties in connection with an employee’s role as an employee occupation trustee. An employee trustee could have to question their employer about their financial transactions ?Any dismissal where the minimum statutory procedures have not been followed will be deemed to be an automatically unfair dismissal. However, in these circumstances, a minimum of one year’s continuous service IS required to make a claim. The examples of relevant employment low case: a. Mike worked as sales representatives in the firm. On the working hours is as working time conventions for legal standards, required the workers to work from Monday to Friday, but the firm don’t provide and appoint the workers to go to work at the weekend. Someday, Mike was dismissed because he refused the revise of work time. It was automatically unfair dismissal. b. A woman employee was confirmed the pregnancy by the hospital, and the hospital issued a certificate of pregnancy. After she gave the certificate to the Personnel Department. But she was dismissed. It was automatically unfair dismissal. c. An assistant catering manager from a local services club was dismissed for allegedly stealing from the till at the end of a shift. The assistant catering manager was a young man who vehemently denied the allegation and lodged an unfair dismissal claim mainly to clear his name, especially for future career prospects in the hospitality industry. 4. Wrongful dismissal is in a category somewhat separate from other types of dismissal. Wrongful dismissal occurs where the employer is in breach of contract in dismissing an employee. Unfair dismissal occurs where the employer is in breach of a statutory duty to treat the employee fairly. Constructive dismissal is term used to describe occurs where an employee leaves their job because of the employer’s behavior. Constructive dismissal occurs where an employee resigns because the employer’s actions must have amounted to a fundamental breach of contract. The constructive dismissal and wrongful dismissal are different from the unfair dismissal. First, the definitions of them are different. Second, every kind of dismissal has its own reasons which are different each other. Third, employees should dependent on different reasons to make sure the dismissal belongs to which kind of dismissal and to claim their rights. 5. If an employee feels that their employer has unfairly dismissal them, they can claim the ‘unfair dismissal’ when they meet the employment conditions, They must meet the following criteria: a. An employee must be employed on a full or part-time basis. The amount of hours worked per week is irrelevant. b. An employee must have one year’s continuous employment. c. An employee must be below the normal retirement age. 6. A tribunal will consider these factors: a. Use procedures to encourage workers to improve, where possible, rather than just as a way of imposing a punishment b. Inform the workers of the complaint against them and provide them with an opportunity to state their case before decision are reached c. Allow workers to be accompanied at disciplinary meetings d. Make sure that disciplinary action is not taken until the facts of the case have been established e. Never dismiss a worker for a first disciplinary offence, unless it is a case of gross misconduct f. Always give the worker an explanation for any disciplinary action taken and make sure they know what improvement is expected g. Give the worker an opportunity to appeal h. Deal with issues as thoroughly and promptly as possible i. Act consistently 7. There are some practical steps that an employer may take in order to ensure that all dismissals are conducted fairly. a. Implement policies and procedures in accordance with ACAS guidelines, which describe how all discipline and grievance issues should be handled b. Make sure that all employees have access to these procedures, and that new employees are introduced to them as part of their induction c. Ensure that all staff are trained to handle discipline and grievance correctly at their level and in accordance with the organization’s policies and procedures d. Keep up to date with ACAS codes of practice and grievance, and make sure that the organization’s procedures comply with models of best practice e. Keep informed of current developments in the legal framework that relate to employment rights f. Develop links with specialist advisors (such as Employment Law legal specialists) to help with specific complex cases 8. CASE STUDY: Domestic Worker's Dismissal Arbitration between: ZUMA - employee party BROWN - employer party Employers Representative: No appearance Employee representative: Mrs. Julia Zuma ?Background to the issue Zuma was employed as a domestic worker by Brown in October 1996 to perform domestic work for one day per week (Thursdays) at a wage of R30 per week. ?The circumstances Zuma then gave evidence on her own behalf. She stated that she had started working for Brown in October 1996. She had been paid at the end of October. In the first week of December she receive her pay for November being R120. Towards the end of the day she was sent to the shop for milk. Upon returning with the milk, Brown accused her of having stolen a coffee mixer, a petticoat and two cups. Brown dismissed her, telling her that she should sell the items which she had stolen and make up her wages from the proceeds. Zuma denied having stolen anything from the employer, and pointed out that the employer was always present in the house with her whilst she was working. Brown swore at Zuma and kicked her out of the house. Zuma has another piece work three days per week, but relied on the fourth day because she supports her two school-going children, a baby, and her unemployed parents. Zuma stated that she believes that Brown dismissed her because Zuma had mentioned to her that she wished to return to her home for two weeks during December. ?The outcome Brown must pay to Zuma an amount of R30 times 52 weeks which amount to R1560 on or before end of March 1997. Brown must deposit this amount into Zuma's bank account. ?The comments Zuma was unfairly dismissed by Brown. She should get some payments, and ask an apologetic. The employer doesn’t have a good ability of managing employees. ?The source of the case www.employmenttribunals.gov.uk