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Employment Claims

Timing is Critical for Employees Seeking to Stand Up For Their Employment Rights

timing

*Sigh*

Yes, I admit it. It’s trite and glib and a cliché to say that “timing is everything”.

You’ve heard it before, and from all types of people, in a variety of circumstances.

But it’s true.

Because the veracity of the statement was never clearer to me than when 3 employees came to me for help in the last 12 months.

Let me explain.

“You can keep your job-I’m not putting up with this”

Let’s call him Mick.

Mick was employed in the same job for nearly 20 years. A few years ago, the business changed hands and Mick had a new boss.

From day one, there were difficulties in their relationship, with regular disputes between them about minor things.

Eventually Mick felt the cumulative build up and drip, drip nature of disputes and niggles becoming too much.

He quit his job. After nearly 20 years.

Mick brought a claim for constructive dismissal.

However, it would have been a much stronger case if he hung on a little longer. Because he should have exhausted all internal procedures first, before quitting, even if it was a futile exercise.

This would have strengthened his case considerably.

If he came to me before she resigned, this is what I would have told him: to exhaust all avenues in the workplace and position himself as an employee who behaved reasonably and simply wanted to sort out the difficulties.

Remember, he walked away from any benefits that would have flown from his 20 year’s service, for example a substantial redundancy payment, if this arose in the future.

However, his timing was poor-he should have got advice before quitting, not after.

He settled his claim, but would have been negotiating from a far stronger position if he had obtained advice when he was still in the job.

Settlement/Termination Agreement

Jackie was also in the job a long, long time. She had a number of grievances and issues with the employer.

To put it simply, she believed the employer owed her a considerable amount of money under various headings. She was considering bringing a claim against her employer, having tried to resolve her issues internally.

Jackie came to me and I advised her about the various causes of action that may have been open to her.

I didn’t hear anything further from her for a while.

Then she returned and told me she had left the job and the employer paid her off. Jackie now wanted to bring a case against her former employer and was wondering about the strength of her case, and what it might be worth.

There was one major problem: when Jackie left the job, the employer, when paying her off, had Jackie sign a compromise/settlement agreement.

(I have written extensively before about waivers/settlement agreements/negotiated exits from the workplace. Take a look at “Avoid this costly mistake in your settlement agreement” and “The Minimalist guide to the tax treatment of employment law awards and settlements”.)

A fundamental part of all these agreements is the undertaking by the employee not to bring any claims or legal cases arising from the employment. Basically, the employer buys this peace of mind by paying the employee money and settling her existing claim, and any future ones.

So, when Jackie came to me I had to tell her that she could not bring any claim because of the agreement she had signed.

The timing problem here was that she should have ensured to obtain legal advice about what she was being asked to sign before she signed it, not months later when it was too late.

WRC had no jurisdiction

Jasminka was a Croatian nanny. She had a number of complaints arising from her employment including not getting rest breaks, excessively long working weeks, being on call and not getting paid, and not receiving the minimum wage.

By the time she came to me, it was too late. She was out of time to submit her complaints, only by a few weeks, but out of time nevertheless.

We submitted the claims on her behalf, but ultimately the WRC decided she was out of time (over 6 months), and there were no exceptional circumstances to justify an extension of time.

So, the WRC decided it had no jurisdiction to hear her claims.

 

These 3 cases illustrate clearly that, yes, timing can be absolutely critical for employees seeking to redress wrongs and stand up for their employment rights.