somewhat complex problem..contracts/overtime....Legal stuff **WON**

[mariefab]

hmmmm, i see what you mean, though, i was kind of hoping that this would not end up at a ET......although i may appear to know a few bits about this stuff, its only through other peoples advice....

 

There's plenty of further advice here if you need it.

 

i don't know the first thing about a ET, apart from its RUDDY expensive....

Cost me some time and some stamps.

But my lot settled well before the hearing

 

I'd think once the realise that i'm onto them, they'll change their act pretty quickly, and make a comprimise agreement !

 

They might, but they'd be more likely to do that once you started a claim.

 

P.S. you can just post on your main thread if you like.

[mariefab]

i have a audio recording where my manager clearly states " you are no longer of use to us " and " if you can't work 60 hour weeks, then your job is no longer availible"

i doubt very much they are stupid enough to put that in writing !

 

No, if they do respond they'll tidy it up, but what they do write may be useful to you because if they write anything about the working hours they require or you opting out of the working time regs it will help your case.

 

Bearing in mind i also refused to do overtime " where i felt it caused my skill and.or judgement as a driver to be affected "

 

As long as you didn't refuse to do any overtime.

 

any court will see that as a GOOD thing( i.e, from my POV) - that i have refused to do overtime when im too tired to drive.....thats plain common sense when you have 12 tonnes of lorry behind you !

 

I would certainly think so!

[k13 wjd]

i see you have named yourself well...marie....FAB !

 

so, its a new day, i think they are aware that they've made a rather large mistake, but i think they are under the impression that i won't act on it....WRONG....

 

I know you said that sending/giving the 2 letters to them might affect and answer they give as to reason for dissmissal, but surely my audio recording ( which may need to be converted to a script) will override that, and as such, i'd be as well handing the letters in ASAP. I'll follow them up in a week's time with a clear indication of what they have done wrong, and what i intend to do about it.....

 

I guess i need to keep myself on the right side of the law here !

[mariefab]

Absolutely, the transcript will override anything they write.

So, if they answer your request for a written explanation with a pack of lies this will be useful ammunition for you.

[k13 wjd]

well, i hand delivered a letter at 0830am asking for written reason of dissmissal......

 

0845, called by manager, who refused, based on my 6 months service period.

 

i understand he CAN do that ?

 

 

so, onto the DPA letter, and the reclaim of truck costs letter.....

[elche]

Ok, letter is written asking for a "refund" of the payment.....looks like this.....any good ??? feel free to make changes....if it looks ok, its getting delivered by hand 2morrow morning !

 

Dear Employer

To Whom It May Concern.

 

I am writing to inform you that I wish to raise a grievance.

 

This is for the following reasons:

The Employment Rights Act 1996, section 15, clearly states

15 Right not to have to make payments to employer

(1) An employer shall not receive a payment from a worker employed by him unless—

(a) The payment is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) The worker has previously signified in writing his agreement or consent to the making of the payment.

(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—

(a) In one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer receiving the payment in question, or

(b) In one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the receipt of a payment on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(4) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the receipt of a payment on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(5) Any reference in this Part to an employer receiving a payment from a worker employed by him is a reference to his receiving such a payment in his capacity as the worker’s employer.

 

On 15/6/2009, I was instructed to make a payment to the company in the sum of £883.27(For the repair of SF53)

 

Unless You have grounds on which you wish to prove that It is stated in a signed contract, or written agreement, That, I (WD) Am required to pay any monies relating to damage to company vehicles, I hereby request a refund of the payment made.

 

I believe you are in breach of s.15 of the Employment Rights Act act 1996 by having asked me to pay, and accepted £882.27 for damage to the Lorry.

 

I was instructed to pay, for the repair and, in good faith I acted on this instruction, which I now believe to have been a misrepresentation of my terms and conditions of employment.

 

I am content that this matter be addressed without a meeting, and as such, kindly send me a cheque in the sum of £882.27. or or reasons for not doing so within 14 days of receipt of this letter.

 

If payment is not forthcoming, I shall be ,making an application to an employment tribunal under the provisions contained in s.23 of the Employment Rights Act 1996

 

I look forward to hearing from you.

Kind Regards

WD

 

Please confirm receipt of this letter within 48 hours.

 

Hope this helps

 

Che

[k13 wjd]

letter handed in IN PERSON, also recorded by means of covert audio.

 

I'll be expecting written response fairly quickly, though i guess they are going to try and fob me off.

[k13 wjd]

DPA request handed in, in person, also recorded the delivery by means of covert audio.

 

handed all my uniform ( over £500 worth ) in, and WAS NOT issued with a receipt....but was sensible enough to record that too, and i went through every item infront of my boss...so i have audio proof of handing everything back in !!!

 

My sister is a HR manager, but is on holdiday at the moment....

 

 

Can someone point me in the direction of a document outlining the entire tribunal process.....OR...........

 

Acas told me they could intervene PRIOR to a tribunal, by appointing someone to discuss the matter with both parties.....is this a good option..

 

 

And lastly, having told you guys everything i have, and based on your previous experience...what would you expect the outcome of a tribunal to be, in terms of finacial gain on my part??? less than 6 months service, but i can rattle of so many faults on their part:

 

(unfair/constructive dissmisal)

No formal training given for a job that is classed as dangerous

No contract or t&c's within 2 months

Charging me for a accident at work( see other topic)

no performance reviews -

No set breaks duing a working day

blatant dis-regard for my wellbeing during working hours ( i.e no meal times etc)

Issuing me with a so called written warning, but refusing to produce a copy of such, ( i didnt sign anything either)

Not offering me a healthcheck prior to doing night work.

 

shall i go on ?

[Kraken1]

subbing

[postggj]

my understanding is as soon as you enter a vehicle with a tcho

 

you are then obligated under the 48 hour working week

 

ill be the first to appologise if wrong but at work its enforced to the letter

 

we even had a chap from vosa come round and explain

[k13 wjd]

Transcript should be completed by midnight 2morrow.

 

Should i advise my (ex) empoyer of the transcript ???

 

I am led to belive they are recording incoming and outgoing phonecalls on a 24/7 basis. If i ask them during a call, whether or not they are recording it, are they legally required to tell me????

 

 

once again, i really do appreciate peoples input to this, and when its done, i am willing to make a fair donation to the cause, as a result of the advice i have received.

[k13 wjd]

hi folks, quickie here....i'll try to keep it simple !

 

mr xx has only worked for a xxx company for 4 months. He takes 3 weeks off(holiday) then is dismissed 2 days after returning to work.

 

Now, bearing in mind the accrued holidays from 4 months service is AROUND 8 days.

 

Is mr XX entitled to FULL payment of the holidays he took, or only the holidays which he has accrued????

 

can anyone point me in the right direction??

[borisbeaver]

No he can not. If he has only accrued 8 days and he has taken 15 (3 weeks), then he would have to pay back 7. The employer is legally entitled to deduct this from his final pay as long as it is in his contract of employment.

[patdavies]

my understanding is as soon as you enter a vehicle with a tcho

 

you are then obligated under the 48 hour working week

 

ill be the first to appologise if wrong but at work its enforced to the letter

 

we even had a chap from vosa come round and explain

 

Recovery work is exempt from many laws and regulations that apple to normal mortals driving this size of vehicle.

 

For example:

1) tachograph;

2) driver's hours;

3) using outside lane of a motorway;

4) parking;

5) using a motorway as a pedestrian.

[patdavies]

As a business, if they are recording the call, they are required to inform you at the start of the call.

[k13 wjd]

if his final wage does not cover the given amount to be re-paid, how is the money requested???

 

i presume they just have to send me a letter?

[k13 wjd]

ah, i didnt know that......can you point me in the direction of some kind of legislation that states that.

[k13 wjd]

Hi folks, quick recap:

 

Was with employer for less than 6 months

 

Issued employer with OPT-IN to 48 hour week under WTD (opted OUT when first started)

Never issued with a contract.

 

Was immediately asked to go to nightshift, with a major reduction in wages, upon handing them the opt in. (I refused)

 

Was then called into meeting, without option to have a work colleague with me. (Did take Dictaphone though)

 

Lots of arguing, silly things said, I wrote a statement saying “I refused to do overtime when I was too tired to drive safely"

 

I was then sacked “your no good to us" so am I fired?? "Yes"

 

 

I then immediately issued a subject access request (and asked them to acknowledge receipt- they haven’t)

AND issued a refund of a payment I made to them for damage to a vehicle (again, asked for acknowledgment, - which they didn’t send)

 

and 5 days ago, I issued a formal appeal(via email), indicating my feelings of unfair dismissal after exercising a statutory right - I asked for acknowledgment within 48 hours, and response within 5 working days - neither of which have been carried out..

 

I have a full transcript of all conversations, copies of all letters, emails.....

 

 

What’s my move now - straight to tribunal, or allow acas to intervene???

 

How to I stand in terms of winning the case, and how any compensation would be calculated...I have lots against them, no training provided, no health checks, no contract issued, forced overtime, no regular breaks provided......

[mariefab]

Next move is to send the appeal request again.

It's too easy for them to say, "What email?"

This time send a letter by recorded/special delivery. Keep a copy for yourself, keep the receipt safe and check the RM track and trace website after a couple of days and note on the receipt the date it is signed for (and by whom, if that info is available).

 

State in the letter that:

 

You have received no acknowledgement or response to your email of ??/??/2009 asking for an appeal hearing on the matter of their decision to dismiss you on ??/??/2009.

 

You therefore repeat your request for an appeal of their decision and would like a response within 7 days.

 

I don't think you can put in a Tribunal claim until you've either completed the Appeal process or at least 28 days have passed since your dismissal.

[k13 wjd]

ok......

 

i've now send them 3 letters, which they have ignored all of:

 

1 for the suject access request - asked for acknowledgement of receipt within 7 days - and stated the 40 day rule

2 for refund of charges relating to damage of a company vehicle - asked for acknowledgment of receipt withing 7 days

3 letter of appeal after dissmissal, stating unfair dissmissal as reason. asked for acknowledgement of receipt within 48 hours (email) and response within 7 days.

 

 

first 2 letter have been at 14 days and 12 hours...NO RESPONSE

3rd letter has been 7 days and 12 hours- NO RESPONSE.

 

 

 

So, should i send them a letter, telling them that as they have refused to respond to any of my comunication, i have no option to presume that they are not interested, and i am left with no option but to persue the matter using an employment tribunal ????? Or should i call acas 2morrow, and see what they can do...OR should a phone call be in order, asking WHY the havent responded........any advice ???

 

 

as always, your input is much appreciated.

[mariefab]

Given that they are unreasonably ignoring all your communications it seems unlikely that they would reinstate you after an Appeal.

 

So, at this point you are gathering evidence for a Tribunal.

The more evidence you have of their failure to follow procedures correctly, and the more you can show of your efforts to resolve these matters, the better your case will be.

 

So, I would suggest that you follow the advice in post#2.

 

The earliest date on which you can enter an ET claim is 10th September.

I see absolutely no reason why you should warn them that you intend to do this. It can only be to their advantage if you do so.

 

Question: On what date did you make the payment you wish to reclaim?

[k13 wjd]

Deleted

Edited August 27, 2009 by k13 wjd
Strange formating.

[k13 wjd]

15/6/09

 

 

i should never have paid it, i can't belive i was duped into it - it's really not me !

[mariefab]

OK, you'll need to enter your claim no later than the 14th September so as to include the payment in your claim.

(Although I could be wrong there as it seems logical that because your dismissal followed the payment the time limit should be extended to allow for this.)

[k13 wjd]

really. i thought the payment would have simply been added into the claim.

 

Failing that, i'll use a small claims court to get the money back for the payment.

 

the letter 2morrow:

 

i have received no acknowledgement or response to your email of ??/??/2009 asking for an appeal hearing on the matter of your decision to dismiss me on ??/??/2009.

 

i therefore repeat my request for an appeal of their decision and would like a response within 7 days.

 

I would also add you have not responed to my request of acknowledgement, as added in my subject access request, and my letter relating to the refund of my payments as a result of damage to a company vehicle.

 

 

 

sound ok ???