Help!! Constructive dismissal or unfair dismissal???

[ecalid]

Hi guys. Sorry to call on you again but I need some advice as my union isn't really on the ball at the minute.

Basicly this is the break down:

- Got additional duties in the office at work that I shared with another collegue. No trial, no statement or contract. No concluding of trial.

- Almost 2 years later, a supervisors job became available. No adverts, internal or external. The job was given to both of us again as my gaffer couldn't choose between us.

- 2 months in my gaffer wants to take us off the rota and replace us with salaried staff and put us back on our contracted duties But refuses to pay us what we were owed through efficacy.

- I contacted HR by email asking for clarification of my contract terms in the absence of an actual amended contract. My gaffer threatened to ostrasize me for talking to HR behind his back.

- I confronted the gaffer, who asserted that I was on a trial with the colleague and because I was asking questions; I will not recieve an amended contract, the role remains on an ad hoc basis only.

- Fast forward 2 weeks I set up a meeting with said gaffer and asked him why he refused to pay me, infront of HR. I told him I would leave on constructive dismissal as he summarily dismissed me from the supervisors role because I told him that I wouldn't allow him to bully me any further. Because of this, HR made him produce a contract including my right to payment regardless of rota arrangements.

however in the contract a term was put "you agreed to a trial of the supervisors role".

- The day after this, I sent an email by virtue of uberimae fedai asking the company to elaborate on terms in order to emancipate myself from backdated contract clause'.

- A week later I was invited to a meeting with my job share colleague to tell me that I was not successfull in my trial and he was now the deputy supervisor.

I immedietly told management that I would not partake in any overtime in light of this event and it was my intention to leave at my earliest opportunity.

5 weeks later I handed in my notice and am now employed elsewhere.

FYI, I have recorded all 3 meetings on my phone and you can clearly discern him threatening to ostrasize me, also where he summarily dismisses me.

Help!!! Where do I stand??? Is this constructive dismissal or unfair dismissal??

Any help you can offer would be appreciated. Thank yoy!!

[ULA]

Hi Ecalid, I have had to quickly back-track over your previous thread last year to refresh myself of your situation.

So, if you handed in your notice there is no claim for unfair dismissal since your employer did not dismiss you.

To attempt to bring a case for constructive dismissal you would have to prove that your ex-employer has committed a serious breach of contract, entitling you to resign in response to the employer’s conduct. It is in fact difficult to prove constructive dismissal - not many claims win. First, you must prove a fundamental (rather than minor) breach of contract by the employer. You must also show that your decision to terminate your employment was in response to the breach and not, for example, because you had been offered a more attractive job. An employment tribunal will also need to satisfy itself that you did not delay too long in resigning. In addition, the tribunal will usually expect that you have tried to resolve the complaint through the grievance procedure before resigning.

I would suggest that you think carefully about bring a constructive dismissal claim, you have moved on and are in a new job. Employment Tribunals can be a stressful process and the onus for a constructive dismissal claim would be on you to prove. If you do decide to go ahead though be aware of the time limit of 3 months less a day for making your claim from the date you left.

[ecalid]

Hi Ula thanks for replying.

Just to reitterate, I was contracted as a delivery driver. The additional duties were an office administrator and a deputy drivers supervisor which were not contracted.

I was dismissed from the deputy drivers supervisor role for capability. They asserted in their trial conclusion letter that I failed the trial for this role on the basis of my maturity, which was an obvious and direct retaliation for making my gaffer fess up the contract and making him look like a fool to his subordinate.

Instead of following through with the summarily dismissal of this role, he waited untill he could fail me for a trial which I did not agree too, which was amended into the contract they presented to me which I did not sign.

IOW, he did not allow the requisite due process to make reasonable adjustments or reprimand me for my apparent immaturity and failed me regardless, without pay in leiu and allowed my 'counterpart' to take the role on with immediate effect.

Sorry, I'm not questioning your knowledge in this field, I am just woundering if I could have ellaborated further.

Please let me know yor thoughts.

[ULA]

A claim for unfair dismissal can only occur when your employer terminations your contract of employment and you are no longer employed by them. From what I understand you were not dismissed from your contracted job as a delivery driver, you resigned therefore there is no case for unfair dismissal. If you are concerned that by being "summarily dismissed from the deputy supervisors role this is unfair dismissal then that would not be the case since I presume you carried on in your role as a delivery driver. What you may have had at the time, was the possibility of raising a grievance about how the process of the trial was conducted.

[ecalid]

Ok, Thank you Ula

I have one more quick question if you will hear me.

I was employed through an employment agency with the employer for 2-3 months, towards the end of the transition between agency and employer I was given a offer of employment letter on the 18th Dec 2014 that stated that I would start work for the employer on the 29th December 2014.

In my contract it mentions that after 4 continuous years work, I will be expected to give 1 months full notice. I terminated my contract with the employer on the 29th December 2018.

It does say in the contract that no previous employment counts towards the continuous employment at my employer.

I recognize that this is pretty much self explanatory, however, if my finishing day was exactly 4 years to the day since my contract was executed, should I have given 1 months notice?

[ULA]

Just double check that your contract states 29th December 2014 as your start date and does not recognise your "agency time" as part of your employment.

When did you actually hand in your notice was this on 29th December and then you worked your notice or was your last working day having worked your notice the 29 Dec.

If the latter then given what you have said if there was a lesser time period given for the notice you were required to give for less than 4 years continous service that was what you could have given rather than a month. If the former then you would have needed to give the month.