Was my hubbie unfairly dismissed?

[ClubMan]

Now under the relevant legislation the company could, after being seen to follow all the correct procedures, dismissed this chap anyway for his lack of competence.

His lack of competence has far from been proven here.

this guy has got a reasonably good settlement

Don't forget that if he was made redundant then he would have been entitled to statutory redundancy of 2 weeks per year plus another week or 17 weeks pay in total which would presumably exceed the 3 months severance that he did receive so perhaps the settlement was not necessarily as good as it seems?

By the way - it is quite possible that the termination payment that he did receive could be tax free but it may depend on how it was made.

 

[MugsGame]

the employer's were obviously unhappy with this chaps work

That's not obvious at all. There are lots of reasons management might want to dismiss someone other than for cause, e.g.
* To cut costs and replace them with someone younger/cheaper
* To promote the owner's nephew/mistress/etc. into the role
* The person is doing too good a job and makes other people (including their superiors) look bad
* To avoid a redundancy payment, as ClubMan points out

to statutory redundancy of 2 weeks per year plus another week or 17 weeks pay in total which would presumably exceed the 3 months severance

Remember though that statutory redundancy payments are capped at €600 per week.

 

[Lomond]

Let's be clear about this, the employer's were obviously unhappy with this chaps work. Now under the relevant legislation the company could, after being seen to follow all the correct procedures, dismissed this chap anyway for his lack of competence. Obviously the statutory minimum notice period would apply i.e 4 weeks

Its my undestanding that dismissing someone for capability, competence is not that easy - once you get into that arena then there is a whole bunch of employment consideratons such as job description, what was offered for training/development, efforts made to support employee if not reaching standards (performance meetings, assessment). The bigger the company, the more likely these standards are likely to apply.

It can be done during a probationary period, but this guy worked here for 8yrs. Also with regards the reference, again its my understanding that if a company cant stand behind (ie paper trail) what they put in a reference (or say on the phone) then they run a risk of being sued for defamation.

 

[bankrupt]

On the face of it I think you have a very strong case for constructive dismissal (I am not a lawyer!) and I would urge you to pursue it. I suggest you ignore dats_right's advice, the company seems to have behaved despicably and should have their actions investigated. I suspect one of MugsGames' suggestions, or similar, could well be the real reason for this dismissal, if this is the case then your husband can expect to be compensated (hopefully handsomely).

Good luck.

 

[dats_right]

www

 

[greenfield]

Dats_right
I presume you have little experience of persuading the employment appeals tribunal of the legitimacy of a dismissal for lack of competence. Trust me, it is not that easy - they expect that you to produce not just evidence of the incompetence, but evidence that the employee was made aware of this and given every opportunity to reach the required level of performance. THEN the employer has to show that natural justice and the prescribed method of dealing with disciplinary matters has been followed (as set out in statutory instrument) - the reailty is that this is the hardest kind of dismissal to justidy and the kind of case an employer is most likely to lose.

 

[ClubMan]

Firstly, I think that it fairly safe to presume that this chap is going to be replaced. Regardless, it really doesn't sound like a genuine redundancy situation.

Just mentioning it in case it might prove to be relevant. For all we know the company might ultimately want to close the outlet in question in which case redundancy may well be relevant.

Secondly, this guy resigned his job so it is not a straight forward unfair dismissal claim.

No - but it could still be a constructive dismissal case.

But, if it were and if the company had sacked him for his apparent lack of competence, it really isn't that difficult for them to prove incompetence.

What about them seemingly not having given written warnings as required by law as far as I know. Also bear in mind what CitizensInformation has to say on this specific matter:

Competence

Competence refers to your ability to do your job. In the first place, you need to be made aware of the standards that are expected of you, and these must refer to the job you were hired to do.

Secondly, if you fall short of the required standard, this must be clearly explained to you. This should be done through a formal set procedure. Your employer should also specify what improvements are necessary. These should be achievable and a reasonable timeframe must be allowed for the improvement.

Ultimately, your employer should give you a final warning setting out the likelihood of dismissal.

Particularly, if there are HR people being seen to apply correct procedures.

Based on what has been posted so far there is a strong possibility that the relevant statutory procedures were not followed in this case.

 

[KalEl]

Club man,

Firstly, I think that it fairly safe to presume that this chap is going to be replaced. Regardless, it really doesn't sound like a genuine redundancy situation.

Secondly, this guy resigned his job so it is not a straight forward unfair dismissal claim. But, if it were and if the company had sacked him for his apparent lack of competence, it really isn't that difficult for them to prove incompetence. Particularly, if there are HR people being seen to apply correct procedures. So his incompetence could have been easily shown

He resigned under duress. The man was presented with what most us agree was an unjust fait accompli.
Employees have to be protected. By not pursuing this the OP and her husband would be doing themselves and other employees a disservice.

If he was that "incompetent" why did he rise up the ladder in the way he did. On the basis of what I've heard this is a cynical cost-cutting exercise.

 

[dats_right]

zz

 

[KalEl]

An employer can't just tell an employee the shelves are untidy once, tell them the queues are a little long another time and then just sack them!

The employee must be made aware of the problem and the potential consequences verbally and in writing. They must also be offered training and/or help...in this case a merchandising course or something similar.

 

[KalEl]

Bankrupt,

with all due respect you don't appear to know what you are talking about. You admit to not being a lawyer yet somehow are able to offer the opinion that the OP has a very strong case. I would suggest that it is utter folly to say that on the strength of what the OP has stated.

Whilst I accept that I am not an expert on employment issues, I am a law graduate and also a trainee solicitor. So I dare say that I know a bit more than many of the posters.

KalEl,

Wrote: "As far as I know an employer is prohibited from giving a bad reference."

I am afraid you are incorrect. There is nothing in law stopping an employer from giving a bad reference per se. Indeed, if they choose to provide a reference they are obliged to give a fair and accurate one, the only proviso, is that they are of course bound by the laws of defamation. Indeed, if the ex-employer prepares a reference without due care and skill they could be potentially leaving themselves open to an action by both the ex-employee and new employer. See generally Spring v. Guardian Assurances [1995] 2 AC 296. So for an employer to deliberately or negligently provide an ex-employee with an inaccurate reference the ex employer could potentially be creating legal difficulties for themselves in so doing. What this means is that a reference must be fair, accurate and prepared using due skill and care and if that means a rotten reference for the ex employee then so be it.

With all due respect I'd have more faith in the views of the posters you're so quick to dismiss than an unqualified solicitor who doesn't work in this field.
One of my employees recently asked me for a reference as he was leaving. I consulted my solicitors as I didn't want to give him a good reference and was told categorically that giving a bad reference was not an option. That's from A&L Goodbody

 

[dats_right]

zz

 

[KalEl]

Club man,

you are obviously missing the point. This guy was not dismissed he resigned. There is possibly a case to be made out that he was constructively dismissed, but I don't necessarily think it is the strongest such case ever.

My point is that if the employer wanted him out they could have followed correct procedures et al and then sacked him. This would of course taken the employer a little longer probably 6-12 months. BUT the end result would have been his 'fair dismissal' in law.

Some people might even see this as bullying and would feel that somebody should be given a genuine chance at improving their work. But such a view would be most naive and would not reflect what is often the reality of a situation. That is to say that if an employer wants to dismiss you fairly they can knit-pick and set targets etc till the cows come home and liase with you as if they are trying to assist or improve performance when in reality they probably already have you P45 ready and waiting.

This really is a moot point anyway, the only reason I brought it up was to show that the employer could quite easily have chosen to 'fairly dismiss' him in law. But the facts of the matter are that this guy resigned and was not dismissed, so the onus is on him to show a constructive dismissal and despite the rent-a-mob attitude to fair play this may well prove problematic in law.

Dats Right, your argument is outrageous.

They could have followed proper procedures and got rid of him by the book anyway, so stitching him up like this is ok?!

Employment law exists for a reason...procedures exist for a reason.

What's happened here is not right or fair.

 

[Vanilla]

Club man,

...despite the rent-a-mob attitude to fair play ...

Hmmm, I don't think you're doing yourself any favours with this kind of remark. Just because the majority of posters don't agree with you doesnt mean they are a 'rent-a-mob'. In fact I think most of the posters have expressed some very good points. At the risk of repeating myself I do think that the OP and her husband should arrange a consultation with an independant solicitor- Luternau seems to have a recommendation for an experienced practitioner. This should give them a reasonable idea of the cost of and likely outcome of any such action for constructive dismissal. I don't think it's possible to say, given the limits of this medium and the very limited details given, whether or not the OP's husband has a strong or weak case.

 

[ClubMan]

Club man,

you are obviously missing the point. This guy was not dismissed he resigned. There is possibly a case to be made out that he was constructively dismissed, but I don't necessarily think it is the strongest such case ever.

How did I miss that point when I said precislely the same thing above?

But the facts of the matter are that this guy resigned and was not dismissed, so the onus is on him to show a constructive dismissal and despite the rent-a-mob attitude to fair play this may well prove problematic in law.

Not sure what you mean by "rent-a-mob attitude" but this comment and a few others (e.g. ) from you in previous posts don't really serve to foster constructive discussion of the topic in hand.

We should probably agree to disagree and my comments/advice to the original poster stand.

 

[dats_right]

rr

 

[MugsGame]

An employer is not prohibited from giving a bad reference, but good practice nowadays is to either give a good reference (where deserved) or to give none at all. Giving a deserved bad reference, or an undeserved good reference, potentially exposes the employer to legal action, as you have alluded to. So the advice KalEl received was correct, at least in terms of the action he took.

To avoid this some employers no longer give references, to anyone, as there is no legal right to a reference. A less extreme variant is to give everyone a 'reference', but restrict it to a statement of facts ("A was employed by B Ltd from Date X to Y.")., with no comment on aptitude or performance. Such a reference is next to useless, as those facts can be verified from a P45 and P60 alone, with no further input from the employer.

 

[KalEl]

An employer is not prohibited from giving a bad reference, but good practice nowadays is to either give a good reference (where deserved) or to give none at all. Giving a deserved bad reference, or an undeserved good reference, potentially exposes the employer to legal action, as you have alluded to. So the advice bankrupt received was correct, at least in terms of the action he took.

For this reason some employers no longer give references, to anyone. A less extreme variant is to give everyone a 'reference', but restrict it to a statement of facts ("A was employed by B Ltd from Date X to Y.")., with no comment on aptitude or performance.

That's more or less the advice I received. Essentially, the employee can sue you and will probably win if you give them a bad reference unless it contains matters of fact. So while it's not "prohibited" doing so is a really bad idea.
It makes sense really...if you say a guy is lazy you'll be asked to prove it. "Eh, he just is" won't wash.

 

[greenfield]

Ailbe
Poor you, you look for advise about what I am sure is an extremely stressful situation and war breaks out. Obviously you do not know the bona fides of anyone offering their opinions or advise here, as I said before I would look for further professional advise

 

[ailbhe]

Hey all. Thanks again for the advice. We had a talk about it over lunch and he has decided to just let it go. We don't have the money to risk a poor reference (those ones that say employee worked here from A to B and nothing else) as the most important thing is keeping a roof over our heads.
He is still only in mid 20s and should be able to get another job based on his experience. Had he not sent in his resignation we probably would take it furthur as the onus is now on us to prove he was constructively dismissed as opposed to them proving they dismissed him fair and square.

We won't be so naiive should it ever happen again. It is disgusting the way the treated him but they will suffer in the long term as they have hired a younger, less experienced guy to do the job (less expensive) and husband will definitly NOT be showing him the ropes and lighting his way. Therefore the shop will (hopefully!) suffer. Their loss.