Letters About Business Problems With Employees

Question 1

Hello Marie Ann,

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I hope you and your company is doing well. I am sorry to hear that you are having problems with one of your employees. I understand the detrimental effects that the erratic behaviour of your employee can have on the brand value of your business which you have toiled to create. It is no surprise that you have decided to punish this deviant employee through termination of his employment in order to maintain the good reputation of your company.

However, it is clear from your email that your company vehicle policy lacks guidelines on speeding. I comprehend that tracking devices were installed in your company's vehicles to monitor the working hours and to analyze the efficiency of the work. The company also informed the employees of the installation of these devices. These are very important factors that will have a major implication on the decision to take a disciplinary action on your employee.

It is very clear that your employee, Zain engaged in misconduct through over speeding in a built-up area. The over speeding can be vividly illustrated by the report showed by the tracking device. However, in order to justify the termination his employment, you need to prove that the misconduct was gross. Terming a conduct of an employee as a gross misconduct warrants an immediate dismissal (Citizens Information, 2016). Duncan et al. (2017) explain that gross conduct enables an employer to instantly dismiss an employee without any notice or payment in lieu of notice. According to Deakin and Morris (2012), an action of an employee can be termed as gross misconduct if it undermines the confidence and mutual trust between the employer and the employee.

Gross misconduct incidences or behaviours vary widely and there is no comprehensive list of these behaviours (Duncan et al., 2017). However, the most common types of gross misconduct include theft and dishonesty, gross negligence, physical violence in the workplace, fraud, alcoholic intoxication, offering or soliciting bribes, illegal activities and criminal acts and a serious breach of health and safety rules. The list of these conducts is quite large and it is necessary for employers to include the behaviours and incidents that constitute gross misconduct in the company's policy.

In order for your company to instantaneously terminate the employment of Zain, you will need to prove that his conduct was a gross violation of the company's code of conduct. The lack of guidelines of the speeding guidelines in the vehicle policy makes this difficult. However, you can argue that the conduct of the employee was illegal and a serious breach of health and safety rules. Speeding is a major violation of the Highway Code and can lead to fining of the offender or a driving ban (Department of Transport, 2018). Over-speeding in built-up areas can result in accidents which may result in fatalities to both the driver and other road users. The financial cost and decrease in brand value of a business attributed to fatalities caused by the negligence of the employee could be enormous. Thus, over speeding can be treated as a gross violation of the health and safety rules.

Engagement in law-breaking activities and breach of health and safety rules can be used as the grounds for immediate dismissal (Kirchner, Kremp and Magotsh, 2013). However, the incidents should be adequately investigated with the employee receiving adequate opportunities to respond to the allegations. This will ensure that the dismissal is fair to the employees and eliminate claims by the employee for unfair dismissal. The facts of the allegations need to be ascertained by interviewing of the relevant witnesses and the employee.

Due to the clarity of the allegations, it might be necessary to suspend the employee. After the suspension, you will have to invite the employee together with his companion to a disciplinary hearing. The letter inviting him to the hearing will contain all the accusation he faces and the potential penalties. After the hearing, you will prepare the letter of termination of the employment if you determine that the employee has to be dismissed. The letter will include the reasons for dismissal and the date of termination. The letter has to include the arrangements for the final pay and the need to return the company's equipment. It is also important for the business to provide an opportunity for appeal to the employee. The appeal process will allow the employee to explain why he is not happy with the initial ruling. This will enable your businesses to further consider the case in order to determine whether the dismissal is warranted.

The Employment Act of 2002 which guides the dismissal and disciplinary procedures against employees requires that each of the actions that have been utilized the disciplinary procedures should be performed quickly without any unnecessary delay. The timing and the location of the disciplinary meetings should be reasonable to both the employee and the employer and these meetings should provide an ambient environment where both the employee and the employer are able to vividly state their cases (Law Online, 2018). To bring credibility to the appeal session, the business needs to be represented by a more senior manager unless the senior most manager attended the disciplinary hearing.

Gennard and Judge (2010) acknowledge that there are risks that may result from the termination of the employee's employment due to gross conduct. If the evidence is not beyond reasonable doubt that the employee engaged in gross misconduct your business may be liable to claims of unfair dismissal by the employee. The claims may be justified if the employee can prove that the dismissal was connected to illegal discrimination, his health status or trade union activities. Thus, you have to ensure that the dismissed employee cannot attribute his dismissal to any of the above factors. Furthermore, an employee can pursue a wrongful dismissal claim whether they have recourse or not based on the breach of their terms of the contract by the employer. If the dismissal is not justified then you will have to pay him the wages he would have received if he was still working.

You'll need to consider all these factors before determining whether to dismiss the employee or not. However, as an attorney, I would suggest that you should write a warning letter to the employee and then update the vehicle policy of your company to include the guidelines on speeding. This will ensure that you have sufficient grounds to take a disciplinary action on an employee if this scenario occurs again.

Have a great day.

Question 2

Relevant Policies for Miss Hawn's Code of Conduct

One of our firm's client Ms. Marie Ann Hawn is having a major problem in her business which she fears may tarnish the reputation of her company. As an owner of a business, Ms. Hawn needs to fire one of her employees for overspeeding to serve an example to her employees but her company's vehicle policy lacks guidelines for overspeeding and the penalties incurred by a driver due to this disregard for traffic rules. The employee in question, Zain, oversped the company's vehicle in a populated area near a school and this has made our client worried that this behaviour may negatively affect the business. As an owner of a small business, our client lacks enough guidelines that regulate the code of conduct of their employees.

In order to ensure that our client and her business conforms to the Employment Act of 2002, it is important to ensure that the business has internal procedures that can be used for disciplinary action against the employees. The Employment Act of 2002 encourages all parties involved in a dispute to solve it, if possible, by the use of proper domestic procedures. The acts mandate that all employers should create a mechanism for disciplinary and grievances procedures and specifies the consequences to be faced by the parties that do not follow the set mechanism.

As the client develops the mechanisms in order to settle disputes with his employees, it is important to ensure that the mechanisms are conversant to the Employment Act. The client needs to develop the statutory dismissal and disciplinary procedures and grievances procedures which are based on the Act. From the act, it is mandatory for every employment contract to have dismissal, disciplinary and grievances procedures in which the employer is not allowed to contract out. The act specifies the minimum conditions that can be specified in the act but does not limit the parties to this contract.

The Schedule 2 of the Employment act of 2002 provides two procedures that can be used to discipline or dismiss an employee; the standard procedure and the modified procedure. The standard procedure can be useful in most cases but the modified procedure is applicable in cases where the misconduct of the employees is termed gross. There is no specification on the process to be determined by the employer to choose the procedure. Thus, the client can choose a procedure at her discretion to discipline her employees.

Businesses also need to constitute a disciplinary team that can be used to solve the disciplinary issues concerning the employees in their workplace (Delpo and Guerin, 2015). From our clients' e-mail, it is vivid that she doesn't possess a disciplinary team and thus the decision to fire her employees is at her sole discretion. Creation of a disciplinary team that is constituted by the management, the human resources representatives, the legal department representative and the employees' representative will eradicate the bias that can be attributed to decision-making by one individual which may result to unfair dismissal.

Kultgen (2010) argues that employers also need to ensure that employees' policy covers all scenarios that may be interpreted as misconduct. It is vital for all the scenarios that can be interpreted as gross misconduct to be listed on the company's guidelines on the conduct of employees to ensure the employees comprehend when they break the code of conduct Department of Health and Social Care, 2018). Since the working environment is very dynamic, the client needs to ensure that the human resource frequently updates the employees' code of conduct to ensure that the emerging issues the document. For example, once the client realizes that the vehicles' policy lacks guidelines on speeding, it would be important for these guidelines are added in the document to ensure that all aspects of the business operations are regulated. To develop a conclusive code of conduct for the employees, the business can hire an external law firm which specializes in business law (Trevino and Nelson, 2016). This will ensure that their regulation does not have loopholes that can be exploited by the employees.

Question 3

To Mr. Shah,

Operations Director, Westvey Ltd.

Pre-Action Conciliation Regarding Mr. Ian Stanmore

It has come to our attention that you have received a pre-action conciliation contact through the Advisory, Conciliation and Arbitration Service (ACAS). We understand that the contact is about the dismissal of Mr. Ian Stanmore whom you dismissed from your company in 2017. From your file, we understand that your company denies strongly any claims that Mr. Ian Stanmore was dismissed unfairly. According to your records, Westvey Ltd employed Mr. Stanmore in 1st January 2001 and terminated his employment on 15th June 2017 for gross misconduct after the discovery that he was engaging in fraud by falsely claiming benefits. Under your company rules as stipulated in the company's handbook, a fraudulent claim of benefits is a gross misconduct and it can lead to the termination of the...