Dissmissal , breach of contract? FINAL HEARING

[breacher]

Hi i was working for a company in the public sector , one of the things in my defense is the basic fact that they was in breach of contract because ....

 

The manager forced me into taking a break at the end of the duty which i am claiming effected my performance

 

According to ACAS It's extremely important that workers take breaks. Studies have shown that heavy workloads and stress can make workers less productive, increase the risk of mistakes, and affect health. and should have their break at some point during the middle of there shift rather than adding the break to the end or beginning of work.

 

In the CWU agreement contract it states breaks must not be taken at the end of the duty. I have it in writing in the interview notes when i pointed out that i was stressed because i had had no break " we have spoken about this before , U MUST TAKE YOUR BREAK AT THE END." ( which was just to suite manager so he can can close doors early and get away earlier while im on my "break" as im walking home)

 

The company s CWU has a binding agreement which means it is contract ... contract of employment explicitly mentions the inclusion of collective agreements with the cwu.This means that all valid collective agreements are express contractual terms.Breaching those terms is a breach of contract.

 

Its gone straight to FINAL HEARING .. i dont know if that is the final thing skipping any kind of pre hearing or whatever?

 

Anyway would you guys say this is breach of contract or what.

 

sorry if this makes no sense

Edited October 3, 2013 by breacher

[stu007]

Hi breacher

 

Welcome to CAG as its the early hours you may not get many responses but the caggers will be along to give you good advice so please be patient and in the mean time have a look around the forum.

 

It would be helpful if you could give a brief outline from start till now which led to the present circumstances for us to give you the best advice.

[breacher]

Basically the job that i was doing was not up to standard , which was enough to dissmiss me ( not completing the task) i had not received proper training which caused the task to be much harder to complete in the time scales... But managers are just lying saying i was properly trained .. the usual crap they would defend .

 

and had been moved to this job on short notice , the fact that i was being refused a break was part of the problem i was just so stressed i basically caved in with the stress of it all , if i could of chilled out for 20 minutes i would not of been so stressed and made the mistakes but instead forced until the end of the duty to take a break then go home with the job incomplete , its not like anyones life was in danger or anything but my health was pretty dam effected! I was also realising i was going to lose my job which blew my mind.

 

i had been working there 5 years without a problem but i had never been put in this situation before.

 

just like ACAS say would happen." Studies have shown that heavy workloads and stress can make workers less productive, increase the risk of mistakes, and affect health"

 

Anyway ive filled in an ET1 and its gone to FINAL HEARING. The breach of contract is just part of it and i just wondered what people thought about not getting my break which is in the contract should not be at the end .. which i was forced to do .

Edited October 3, 2013 by breacher

[stu007]

How long were you employed by the company?

[breacher]

5 years without any problems , really need an answer to this ,, no one seems to be able to tell me if i have a case for breach of contract... getting so tired of it all.

Edited October 3, 2013 by breacher

[steampowered]

You have already filed your ET1. What, exactly, are you claiming for? Notice pay? Compensation for unfair dismissal?

[king12345]

If the Cwu contract states that a break must not be taken at the beginning or end of shift, they are at fault.

however, public services are well known to find all sort of crap to sack people.

ET will probably rule in your favour as the big question to them is always if any party has breached the terms of contract.

But they can't force your company to take you back if you had already being dismissed unfortunately.

[Emmzzi]

how long was your shift

how bad was the mistake (life threatening?)

what was the exact reason for dismissal as stated on your dismissal letter?

[becky2585]

Are you claiming anything aside from not being able to take your break in the middle of your shift?

[breacher]

I am claiming , unfair dismissal/constructive dismissal ( even though i did not resign i feel i was forced into a dismissal situation)

Along with other reasons for unfair dismissal ie not giving witness statements , refused cctv , not given copy's of notes that was full of lies etc etc . I do actually have a solid reason for not completing the tasks . ie i had to return to office because normally i would be locked out if back any later .

 

It was no life threatening no.

 

Shift was 5 hours . yes i am awaire i have to work 6 before legally given a break .. but its still in the contract as policy that everyone no matter what gets a break but must not be at the end.

[Emmzzi]

and I ask again, what was the reason for dismissal as stated in your dismissal letter

[breacher]

and I ask again, what was the reason for dismissal as stated in your dismissal letter

 

Reason for dismissal was for not completing the job delaying the process . Which is classed as gross misconduct , even though other people have done same thing in past and not been sacked or just given a final written warning . Anyway don't worry about that i am just concentrating on the breach of contract side of things at the moment. And how i will implement that at tribunal.

 

Does anyone know how breach of contract goes down?

[becky2585]

Reason for dismissal was for not completing the job delaying the process . Which is classed as gross misconduct , even though other people have done same thing in past and not been sacked or just given a final written warning . Anyway don't worry about that i am just concentrating on the breach of contract side of things at the moment. And how i will implement that at tribunal.

 

Does anyone know how breach of contract goes down?

 

Even if there was a breach of contract, unless you've suffered an actual financial loss as a result then it's a non starter.

[steampowered]

Your claim is not really a claim for breach of contract. Any compensation awarded for the breaks issue would probably be pretty small.

 

Your claim is really about unfair dismissal. The burden of proof is on you to prove that the employer acted unreasonably in dismissing you. The core issue is whether the employer acted unreasonably in dismissing you.

 

The fact that you had not been given the proper breaks is relevant to the standards that can be expected of you when working. But it is not the core issue. The fact that you had not been allowed breaks does not necessarily mean that the dismissal was unfair.

 

Constructive dismissal is not relevant since you were dismissed, you didn't resign.

[breacher]

I have been unemployed since april. and as far as im aware breach of contract can cost upto £25.000 ....

[breacher]

Your claim is not really a claim for breach of contract. Any compensation awarded for the breaks issue would probably be pretty small.

 

Your claim is really about unfair dismissal. The burden of proof is on you to prove that the employer acted unreasonably in dismissing you. The core issue is whether the employer acted unreasonably in dismissing you.

 

The fact that you had not been given the proper breaks is relevant to the standards that can be expected of you when working. But it is not the core issue. The fact that you had not been allowed breaks does not necessarily mean that the dismissal was unfair.

 

Constructive dismissal is not relevant since you were dismissed, you didn't resign.

 

Any award for not getting a break would be pretty small? How do you come to that conclusion , so its not breach of contract?

I have my case for unfair dissmissal that is not a problem. But i am more interested in the breach of contract at the moment.

 

When acas are saying if you dont get a break it causes mistakes which i did , then i would say it is quite core to the issue of the unfair dismissal.I would expect the tribunal to realise this?

 

The tribunal the way it is doesn't really make much sense to me the fact you have to quit your job to make a claim doesn't seem right i was never a quitter and did not know the ins and outs of constructive dissmisal befoire hand i did not have some devious plan to get money at a tribunal l just wanted continue to work in a job i liked doing . But what really went down was constructive dismissal and my actions could be seen as quitting even though i did not.Walking out with the job incomplete only meant one thing, even though i was not 100% sure i would be sacked because i had got the wrong idea from other people doing the same thing and getting away with it. i was forced into this situation!Stress does funny things to a person, i should not of been so stressed , i should of had a break! like the contract says i could not continue under these circumstances that day!

Edited October 3, 2013 by breacher

[breacher]

Its like saying you have to stand on one leg even tho its in contract you are allowed to stand on two .. and if you fail your duty you are sacked! and because u didnt quit you cant claim its was constructive even tho what u done would get u sacked and you knew thought maybe might happen but was not sure.... and if it goes to court its only a small payment so we are not bothered.. unreal

[steampowered]

Any award for not getting a break would be pretty small? How do you come to that conclusion , so its not breach of contract?

 

I have my case for unfair dissmissal that is not a problem. But i am more interested in the breach of contract at the moment.

 

I guess it would be a breach of contract. The remedy for breach of contract is an award for the financial loss you have suffered. I cannot see how you have suffered any financial loss, apart from the dismissal ... this is why I think any pure breach of contract award would be minimal.

 

When acas are saying if you dont get a break it causes mistakes which i did , then i would say it is quite core to the issue of the unfair dismissal.I would expect the tribunal to realise this?

 

Yes, absolutely. If you only made a mistake because you weren't given a break, that would be a good way of convincing the Tribunal that the employer acted unreasonably in dismissing you.

 

I imagine the employer does not see it that way. The employer will presumably argue the mistake was inexcusable, and sufficiently bad to justify a gross misconduct dismissal. But based on your whole post, it sounds like the employer will be relying on you walking out of a job rather than the mistake itself as the main reason to justify gross misconduct dismissal.

 

The tribunal the way it is doesn't really make much sense to me the fact you have to quit your job to make a claim doesn't seem right i was never a quitter and did not know the ins and outs of constructive dissmisal befoire hand i did not have some devious plan to get money at a tribunal l just wanted continue to work in a job i liked doing . But what really went down was constructive dismissal and my actions could be seen as quitting even though i did not.Walking out with the job incomplete only meant one thing, even though i was not 100% sure i would be sacked because i had got the wrong idea from other people doing the same thing and getting away with it. i was forced into this situation!Stress does funny things to a person, i should not of been so stressed , i should of had a break! like the contract says i could not continue under these circumstances that day!

 

You do not have to quit your job to make a claim. I think you are over-thinking this.

 

If you are sacked, and it was not reasonable for the employer to sack you, that is unfair dismissal. If you resign, and you were forced to resign by the employer's actions that is still unfair dismissal ... we just call it "constructive" dismissal. It is only constructive if you resign.

 

In this case you were sacked. Unless you are arguing that you walking out was a fully fledged resignation, your dismissal was not constructive. You need to focus on proving it was unreasonable for the employer to dismiss you in the circumstances.

[breacher]

Yes i was forced into a dismissal situation ! , but i did not resign how could i? the next day i was in dismissal interviews and i did not think i would be dismissed anway, and what they did ie not giving me a break , not training me etc was the reason for it among other things

 

If i was trained and given a break things would of been different , but on that day it was the last straw for me basically a nervous breakdown.

 

. I am sure in the employers eyes what i did warrants a dismissal but they refused to listen to my explanations which clearly point towards unfair/constructive dismissal. Hence the Tribunal. I did not resign , but felt forced to lose my job because of there negligence and messing me around.

Edited October 3, 2013 by breacher

[breacher]

steam powered thanks this is just what im looking for .

 

What i still don't understand... if i just go with unfair dismissal can i still talk about just the same things as constructive dismissal wrapped up in unfair dismissal. i get the feeling all i can talk about is the basic procedures that they went through ie following the acas hand book ( which they did not) does me saying the training was inadequate , lack of duty time , stress due to no break etc come under unfair dismissal .. that is confusing part i have called witness regarding these things so not sure what tribunal will think.

 

I also dont understand why u think the breach of contract does not mean i have suffered any financial loss i have been out of a job since april and things are not looking good for the future?

[steampowered]

You didn't need to resign. It just is not constructive dismissal. It is simply unfair dismissal. The point I am trying to make is that you should not be confusing yourself by reading about constructive dismissal, because it is not relevant to your case. Do not try and push yourself into the constructive dismissal box - it doesn't help the case.

 

The main claim here is basic unfair dismissal. You will need to show that the employer acted unreasonably in dismissing you. Proving that you should have had a break will help ... but not enough by itself.

[breacher]

Well whatever aslong as harassment, rumors about me being moved off my duty ,moving me to a duty without notice , reducing my pay , threat of violence ( people getting smacked in the face next to me and then having mangaers raise there fists at me) , singled out for being moved off duty to a less favorable position without training and then trying to say i was trained , lies , not given normal training everyone else was getting , not allowed a break . comes into unfair dismissal then that's fine then . i should stay away from constructive dismissal completely?

[steampowered]

steam powered thanks this is just what im looking for .

 

What i still don't understand... if i just go with unfair dismissal can i still talk about just the same things as constructive dismissal wrapped up in unfair dismissal. i get the feeling all i can talk about is the basic procedures that they went through ie following the acas hand book ( which they did not) does me saying the training was inadequate , lack of duty time , stress due to no break etc come under unfair dismissal .. that is confusing part i have called witness regarding these things so not sure what tribunal will think.

 

No worries, it is very common for people to get confused about this.

 

Technically speaking, there is no such thing as a claim for "constructive dismissal". It is just one particular type of unfair dismissal claim. It means an unfair dismissal claim, where the employee was not actually dismissed but he was forced to resign. If you are reading about constructive dismissal cases, the bits about the employee being forced to resign are not relevant to you. This is because you were not forced to resign, you were sacked.

 

The other aspects of these cases such as whether the employer followed a fair procedure, whether it was in breach of contract, whether it acted reasonably ... these are relevant.

 

In the Tribunal your job is to prove that the employer did not act reasonably in dismissing you. This will depend on the circumstances. The employer will present its case about why it dismissed you, and you will then need to rebut that.

 

For example, you might say the mistake was not that serious, or it was the first time it happened, or it only happened because you had not been given the proper breaks ... and for these reasons it was not reasonable for the employer to dismiss, and certainly enough to dismiss without notice for gross misconduct.

 

I also dont understand why u think the breach of contract does not mean i have suffered any financial loss i have been out of a job since april and things are not looking good for the future?

 

The reason you are out of a job is because you were dismissed. Not because you weren't given breaks. If you want to be compensated for the time you have been out of work, you will need to show that the dismissal was unfair.

[steampowered]

Well whatever aslong as harassment, rumors about me being moved off my duty ,moving me to a duty without notice , reducing my pay , threat of violence ( people getting smacked in the face next to me and then having mangaers raise there fists at me) , singled out for being moved off duty to a less favorable position without training and then trying to say i was trained , lies , not given normal training everyone else was getting , not allowed a break . comes into unfair dismissal then that's fine then . i should stay away from constructive dismissal completely?

 

Yes. I think it is misleading to talk about CD ... because you didn't resign you were sacked. To be fair I don't think an employment judge will be too excited about whether you are using the correct legal term, but best to use the correct term if you can.

 

Focus on the key point, which is whether it was reasonable for the employer to dismiss. If the employer dismissed you for slightly losing it, but you only lost it because of the issues you described ... then that is a reason for saying the decision to dismiss was not reasonable.

[breacher]

Btw should i really be talking about this case openly ?