|Type of paper:||Course work|
|Categories:||Discrimination Human resources Employment law|
The problem at hand relates to employee misconduct. The law should protect both the employee and employer. Regarding the case at hand, Olaf was dismissed after a fair hearing. Employee handbook states that employees should behave and act in a subordinate manner towards their line managers. In normal occasions, the relationship between supervisor and his employee can have a negative impact on the entire organization. The effects can spread among all employees if they notice the behavior ongoing between the superior and one of their own. Both supervisor and employee should foster the growth of the firm. The employment law states that wilful disobedience of order might result in summary dismissal. Peter (2014) in his article while quoting from a case on Laws v. London Chronicle ltd states that wilful disobedience of a lawful order shows a complete disregard of a condition. The condition is essential to the contract of service, namely, the requirement that the servant must obey the proper rules of the master and unless he does so, the relationship is, to speak, struck at essentially (Barnard, 2012). On the other hand, the two are all employees and should be protected from discrimination. Not even the supervisors are immune to discriminatory acts. The unfair dismissal of Olaf was uncalled. There has to be an alternative to termination.
Under the doctrine of "respondeat superior", employers are vicariously liable for negligent acts or omissions by their employees in the course of employment. The employer-employee bill states that the employers will often be held responsible for the conduct of the employees (Ferrara, Ralph, Diane, 2012) the law applies even if the employer never intended to cause any harm its staff (Deakin, Simon, Gillian, 2012). MB is also liable to Olaf for all the dues he has for in the fifteen years of service. The amount should be paid in full plus the retirement benefits due to the length of time Olaf has stayed in the company. If not paid, he can sue for damages as in the case of McCracken V. CN Railway. What we are not sure is if the contract binding the two parties is a unilateral or bilateral offer. The law has it that when the plaintiff is aggrieved in the arrangement of employment and needs compensation, the legal system will be interested in making the plaintiff whole thereby assigning the liability to his employer (Dertouzos, James, and Lyn, 1992). Regarding the harassment, the employer does not have a law in place to prevent such occurrences. There is no proof that the lady exercised reasonable care to avoid the argument that might lead to misconduct and that she tried to correct the situation. The employee too never complained to the management of any work harassment.
Olaf was victimized in the case above. The trial should have been conducted by someone in a superior position to allow the fair hearing. The management ought to have organized an appropriate panel or tribunal to help promote fair trial on the matter. Through such a board, they could have substantiated both claims and could have managed to spot individual weaknesses in the line of duty. The law, therefore, works in his favor. He was not given a chance to explain his part. In case he goes ahead to sue the company for damages, he might win the case. Section 109 of the employer's act states that the employer will be liable for harassment unless he demonstrates that he/she has done everything possible to prevent /deal with the situation. He should show that he tried to exercise reasonable defense while in the line of duty. Olaf also as an employee has the right to a fair dismissal as stated in the employment act (Perritt, Henry, 2006). As noted in the happening, the employee behavior amounted to gross misconduct which calls for fair dismissal. The management ought to have followed the process enumerated in the handbook by suspending the employee, calling for an investigation, an employee at least to bring a colleague to the meeting, giving a chance for an appeal then dismissing him after getting to hear both sides of the story.
Where the company has implied terms and no express terms laid out, the presumption is that there are only suggested terms. The work voluntarily regulation, then again, enables the business to terminate a worker paying little respect to the length of administration without abusing the law." (Valentine, Sean, et al., 2010). In the case at hand, the terms have not been laid out on how the employees should conduct themselves. There is also no laid out the plan on employee dismissal. The law is, thus, to favor the plaintiff since he is not in a position to enforce the rules. The various remedies that Olaf can seek include breach of contract of which standard contract rules will have to apply (Furmston & Michael, 1992). He can also sue the company for damages based on the value of the contract breached. He can win the case on bad faith and aggravated damages. If he still wants to work with the company, he can as well seek an injunction to stop the company from dismissing him. The order will render the contract null and void if put in place.
In any case, Olaf decides to pursue damages and has valid proof that he was not given a fair hearing, the employer is likely to be fined a hefty penalty regarding monetary compensation to the aggrieved. If he applies for an injunction, the court still might rule against the company since it never affected the necessary steps in dismissing Olaf. He should apply for ex parte to allow him to give full disclosure to the court together with the company (Chinkin, 1999). On the other hand, through the court process, he might win back his job. However, this might not be the best remedy. If he gets back the job, he might have a rough time with the employer in future. He can as well be awarded a non-financial remedy. The parties can consent to more than one non-financial result at assuagement. As needs are, settlements including non-financial pay are not total figures. (Colandrea, 2007).
My advice to Olaf would be to proceed in pressing the legal charge against the company since from both sides; he is likely to win the case against the employer. The employer does not have strong defense regarding how the issue was handled. If given an option of accepting back the job and monetary compensation, I would advise him to disregard the job offer. Accepting the offer is like inviting more troubles between him and the boss. There might follow a series of witch-hunts aimed at dismissing the employee or making him regret his action.
The three individuals were treated unfairly due to their skin color. They wasted their time to attend the interview ad passed only to be denied the chance due to the race they belong. Equality Act 2010 states that you must not be oppressed. Discrimination is considered unlawful (Bamforth, Maleiha and Colm, 2008). The tort comes in different forms comprising indirect, harassment, direct and victimization (Lameyre & Peter, 1982). In the Preeti's case, she side-lined the other applicants even though they outperformed. The type of discrimination underlying the case is ethical discrimination of which the individuals are side-lined based on skin color. Work environment morals are measures or codes that decide good and bad, right conduct in the workplace. Segregation is characterized as "the crooked or biased treatment of various classes of individuals or things, particularly on the grounds of race, age, or sex." (Oxford Dictionary).
Since the trio was not yet absorbed by the company, they don't need to raise a written grievance to the employer before filing a claim. They have a variety of remedies at their disposal. They can decide to resolve the dispute by negotiating with Pretty. Such a step is a peaceful one and may result in friendly resolution. To raise the issue to a broader audience, they can decide to engage the media to publicise their effect on the dailies or even broadcast (Peck, 1983). Such a step is disastrous for both the company and the manager. The firm might lose the brand through adverse publicity. Filing a case with the courts is also another step that might harm the company's reputation. Through the process, they might decide to either file a joint case or individually. It will depend on the individual choice. They can as well air their issue to the racial equality directorate the equality commission if they so believe that it is not the first instance such has happened to recruits. The course of action is taken either individually or as a group will depend on the desired outcome from the parties. The speed at which one needs the result will also determine the course of action.
There are various remedies that the parties might get as a result of Preety's actions. They include compensatory and punitive measures. If they were already employed, the court might order the company to give them back their job positions. The remedy is termed as for pay, and it compensates the employee for lost future wages and benefits if available (Kahlenberg, 1997). Through negotiation, the remedy will depend on the agreeable terms between the affected parties and the defendant. They might request a monetary compensation, a handshake to resolve the dispute or demand that the position is given to one the three plaintiffs. It is not, however easy to come to a conclusive agreement when it comes to such situations. In case they seek court redress, they may be awarded compensatory damages for mental distress, emotional distress or both resulting from the process of discrimination. However, their existing burden of proof of which they must ascertain that they suffered the same. On the other hand, the court might decide to punish the employer by awarding punitive damage. For the plaintiff to succeed in their case, they must prove that the employer acted with malice in her action (Greenwald, Thomas, 2014). They can also be awarded liquidated damages which may be of benefit to the plaintiff. I would advise the defendants to take the channel of legal proceedings.
By doing so, they are likely to win against the company. If given a remedy of either accepting the job or monetary compensation, I would advise them to take the later. Allowing the situation might be regrettable in the long run. If asked on whether the employer should be fined and they be offered the job, I would ask them to accept none since there is nowhere they benefit from the harm caused. With that, I would advise them to file an appeal. The best way to win the case against the employer is by being awarded damages in monetary terms.
Greenwald, A. G., & Pettigrew, T. F. (2014). With malice toward none and charity for some:, Ingroup favoritism enables discrimination. American Psychologist, 69(7), 669.
Kahlenberg, R. D. (1997). The remedy: Class, race, and affirmative action. Basic Books.
Peck, C. J. (1983). A New Tort Liability for Lack of Informed Consent in Legal Matters. La. L. Rev., 44, 1289.
Lameyre, J., & Bowden, P. (1982). Plutonic rock types series: discrimination of various granitoid series and related rocks. Journal of Volcanology and Geothermal Research, 14(1-2), 169-186.
Bamforth, N., Malik, M., & O'Cinneide, C. (2008). Discrimination law: theory and context (pp. 0-1300). Sweet & Maxwell.
Crosby, F. (1984). The denial of personal discrimination. American Behavioral Scientist, 27(3), 371-386.
Chinkin, C. M. (1999). United Kingdom House of Lords. Regina v. Bow Street Stipendiary Magistrate ex parte Pinochet Ugarte (No. 3). 2 WLR 827. American Journal of International Law, 93(3), 703-711.
McCormick, C. T. (1935). Handbook on the Law of Damages. West Pub. Co..Perritt, H. H. (2006). Employee dismissal law and practice. Aspen Publishers Online..Dertouzos, J. N., & Karoly, L. A. (1992). Labor market responses to employer liability. Rand Corpo...
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