Boss calling solicitor over contract

TG1

STB. wrote: »

The would be "employers" on thread are hilarious. If someone worked for a company for 15 years, a reference is the last thing you'd be looking for. The time they have worked speaks volumes.

Have to disagree. If I was getting to final stage with a candidate who was in one job for 15 years and did not have a reference from that job alarm bells would seriously ring.
The time spent speaks volumes as to the working relationship as no one would stay 15 years in a place if that wasn't good. So my question looking at that would be how and why did it suddenly go so sour that after 15 years that no one in the company would provide a reference? And is whatever happened likely to happen to us if we hire the same candidate?

evolving_doors

Glass fused light wrote: »

Ignoring the likely outcome win \ loose and the economics of the employee having the funds to pay:


A company has to hire a solicitor to act on its behalf in court. So there has to be someone in the company with the authority to instruct the solicitor, and funding to pay for the legal action.The funding would be unsecured debt.

Before the liqudation the people with the authority to instruct would be the Directors, after the liqudation commences it's the Liquidator (the directors are basically sacked).

In a liquidation all debts are listed in strict order and it determines for each creditor who has to be paid before them and if they are entitled to full or partial payment before the next guy on the list gets paid.
payments are made  (roughly) in this order: 
1) Liquidators  fees
1) State debt (taxes etc.)
1) Some Employee costs (wages to date of liqudation etc)
2) Secured debt 
3) Unsecured debt
4) Ordinary shareholders.

Within the ranking full  payment is made to class 1 debt in order before moving to class2, here payment is dependent on how well the contract was written. Class2 could be contractual entitled to be paid in full before others in the class or only get a percentage.  Class3 get a percentage (could be 100%). Class 4 get all the money left after paying the others.
(^^open to correction on this)

Below are the types of liquidation 

https://www.cro.ie/Termination-Restoration/Company


The court case is not an asset.

With a creditor wind up its insolvent (no cash to fully pay the debt) otherwise it would be a members wind up.  If the directors commenced and prefunded the case they risk becoming personally liable as they diverted money which should have been used to pay debts. Once appointed by the creditors the liquidator is obliged to focus on settling the debts. The Liquidator is answerable to the creditors.  They cant\wont bet on the court case resulting in the company's favour so won't commence proceedings. 

In a court appointed wind up (it could be solvent but likely an unsecured/ secured creditor jumping the que) the director's would loose control without adequate notice and the Liquidator is working for the courts and won't bet.

In the members (shareholders) wind up the Directors confirm that all debt can be funded\paid within 12 months this funding would have to include the cost of the legal action if they are committed to court action. On this basis the directors could commence an action and even pre-fund it or as they have the cash to pay the legal team just have a contractual agreement(<debt to be paid).  Its the members who drive the wind up so the Directors would get pre-approval for the liquidation and the court case. The members also get to pick the Liquidator and can have an agreement that the case is progressed. Once the Liquidator is appointed and the Liquidator is confident the debts can be paid, and can cover the cost of loosing they could stick to the agreement as they are spending the members money at their request.  
However in real life the directors need to be confident on paying the debt within 12 months (the court date is unlikley to be with in this timeframe).  So company will normally have ceased trading, sold off most if not all of the assets, paid or organised to pay off the debts and allocated funding against the debts, made/agreed staff redundancy payments and paid spare cash out as a dividend.  The company will have to fund the liquidator, and the fee would reflect the time involved and complexity of closing the company. The Directors doing the work would normally be cheaper and easier to control than the Liquidator so the court action would be pre-wind up.
And if you have got this far without falling asleep, good night!! I am happy to read where I am wrong in the morning

So they'd probably have to pre-fund a solicitor.
Fat chance of that happening I guess.

Wildcard7

NeonSquares wrote: »

Contract states a month.

NeonSquares wrote: »

my partner is giving two weeks notice

And suddenly I'm not surprised anymore about the employer getting a solicitor involved. If I were an employee or an employer and only got given half the notice that was agreed, that's what I'd do.

NeonSquares wrote: »

but opinions are 50/50 on the length of notice given versus contract.

Why?

evolving_doors

Wildcard7 wrote: »

And suddenly I'm not surprised anymore about the employer getting a solicitor involved. If I were an employee or an employer and only got given half the notice that was agreed, that's what I'd do.



Why?

Shoe on the other foot:

Would you have told the Cleary's workers to work out their month's notice a month before the company went to the wall?

This case is an exception as the company is being wound up... and they were keeping it under wraps for as long as possible.
If she'd have waited they might have taken on another employee from her company.

And the band played on.... how noble, but they all drowned too.

Wildcard7

evolving_doors wrote: »

Shoe on the other foot:

Would you have told the Cleary's workers to work out their month's notice a month before the company went to the wall?

This case is an exception as the company is being wound up... and they were keeping it under wraps for as long as possible.
If she'd have waited they might have taken on another employee from her company.

And the band played on.... how noble, but they all drowned too.

Look, if you want to discuss what's right or nice or how it would work in a perfect world or who has empathy or other touchy feely stuff, grand. You can fill pages with that with absolutely no outcome or consensus. (Spoiler: that's what happened here). That's a matter of opinions, ask two people and you get three different ones.

The matter of fact is that when two parties agree to something, and one party breaks their part of the agreement, the other party has the option to legally enforce it. Since in many cases the other party is only a human who's probably under a lot of stress as well, it's not surprising that they might get in a huff and go through unreasonable lengths to enforce the agreement, far beyond what's economically viable ("because it's a matter of principle"). And when the agreement is put in writing and valid, then good luck to the other party.

Whether I or you sympathise with the way the employer or the employee are acting is of absolutely no relevance to that.

I believe the original question was "can she actually bring anything legal against my partner for handing in her notice", and once the facts where clear, so was the answer. Yes, if you contractually agree to a month notice period and you only give two weeks, the employer can do that.

my3cents

Wildcard7 wrote: »

Look, if you want to discuss what's right or nice or how it would work in a perfect world or who has empathy or other touchy feely stuff, grand. You can fill pages with that with absolutely no outcome or consensus. (Spoiler: that's what happened here). That's a matter of opinions, ask two people and you get three different ones.

The matter of fact is that when two parties agree to something, and one party breaks their part of the agreement, the other party has the option to legally enforce it. Since in many cases the other party is only a human who's probably under a lot of stress as well, it's not surprising that they might get in a huff and go through unreasonable lengths to enforce the agreement, far beyond what's economically viable ("because it's a matter of principle"). And when the agreement is put in writing and valid, then good luck to the other party.

Whether I or you sympathise with the way the employer or the employee are acting is of absolutely no relevance to that.

I believe the original question was "can she actually bring anything legal against my partner for handing in her notice", and once the facts where clear, so was the answer. Yes, if you contractually agree to a month notice period and you only give two weeks, the employer can do that.

How can you legally enforce a contract when the ultimate sanction is to sack the employee. You can't sack them after they have left.

Peregrinus

my3cents wrote: »

How can you legally enforce a contract when the ultimate sanction is to sack the employee. You can't sack them after they have left.

You can prevent them from taking up another job until their notice period has expired.

Glass fused light

evolving_doors wrote: »

So they'd probably have to pre-fund a solicitor.
Fat chance of that happening I guess.

Pre-funding only in a members wind-up, in the OP's case redundancy is average weekly salary x 2 weeks per year of service x 15 years.

If the company has money available, its cheaper to pay a bonus on leaving and it would have been discussed at the staff meeting.

my3cents

Peregrinus wrote: »

You can prevent them from taking up another job until their notice period has expired.

How?

Peregrinus

By threatening to sue your new employer if he employs you while you are still under contract to your old employer. Or by seeking an injuction preventing you from entering into a new contract in breach of your current contract.

It's the nuclear option, so employers are slow to resort to it. But it works.

my3cents

Peregrinus wrote: »

By threatening to sue your new employer if he employs you while you are still under contract to your old employer. Or by seeking an injuction preventing you from entering into a new contract in breach of your current contract.

It's the nuclear option, so employers are slow to resort to it. But it works.

I see you used the word threatening, the new employer has signed no contract with the old employer so can it ever be more than a threat?

Then I wonder is there something in the constitution that gives an employee the right to work or at least not have an old employer prevent him from working at a new job?

Peregrinus

my3cents wrote: »

I see you used the word threatening, the new employer has signed no contract with the old employer so can it ever be more than a threat?

No contract between the employers is required. It's an actionable wrong to entice somebody to breach his contract of employment, and if you do it you can be sued.

my3cents wrote: »

Then I wonder is there something in the constitution that gives an employee the right to work or at least not have an old employer prevent him from working at a new job?

There is a constitutional right to work, but if you you enter into a contract with, e.g., a two-week notice period, you have waived your right to take up alternative work within that notice period (except by agreement with your current employer, of course). If the contract had an unreasonably long notice period, or was unreasonable in other respects, I think there probably would be a constitutional case against it to be made, but in normal circumstances a standard employment contract with a standard notice period is not likely to be found to be unconstitutional.

Glass fused light

my3cents wrote: »

I see you used the word threatening, the new employer has signed no contract with the old employer so can it ever be more than a threat?

Yes, eg the new employer is potential causing a loss.

The new company should not have had sight of the old contract, so there could be other terms and conditions relating to the employment which could drag them into a case against the ex-employee, even if only as a witness.

If a company is paying notice and puts the employee on gardening leave its to stop the ex-employee from bringing a market advantage to the new firm could just be that they are liked and known in the business.

it's bad PR if the company don't respect a written contract.

my3cents wrote: »

Then I wonder is there something in the constitution that gives an employee the right to work or at least not have an old employer prevent him from working at a new job?

the employee is working with the old employer. Once the employer is paying they have a right to control your work hours.

seamus

Peregrinus wrote: »

By threatening to sue your new employer if he employs you while you are still under contract to your old employer. Or by seeking an injuction preventing you from entering into a new contract in breach of your current contract.

The new employer is not a party to the original contract, they cannot be sued.

Of course, your point may be that the old employer will simply resort to dirty tricks - the new employer won't want the hassle of being sued, whether a case exists or not.

Likewise with the injunction, no court would grant one, but few people want to deal with it. Even if the court did grant an injunction, it would be limited - the employee's notice would still stand, but the court might determine that the employee cannot enter into a new contract for 4 weeks instead of 1. The court wouldn't grant an open-ended injunction.

Effectively you're saying that the old employer could attempt to browbeat and bully the employee into staying by filing vexatious lawsuits.

And you're right, they could; but realistically would they? How long would it take to even get there?

rgodard80a

When you say "contract" you mean contract of employment for a permanent position? Or was she on some rolling year on year contract renewal deal ?

As was mentioned before, if she's a permanent employee, she should be entitled to a tax free redundancy lump sum... something like 2 weeks per year of employment ? (can be corrected here)

She doesn't want over half a years salary tax free in the hand to work the last month?

Assuming she's entitled to redundancy, handing in your notice (or even less than your notice in this case) can potentially mean losing that as she won't be an official employee when the company shuts down.

Peregrinus

seamus wrote: »

The new employer is not a party to the original contract, they cannot be sued.

Yes, they can. It is an actionable wrong to entice somebody to breach their contract.

seamus wrote: »

Effectively you're saying that the old employer could attempt to browbeat and bully the employee into staying by filing vexatious lawsuits.

And you're right, they could; but realistically would they? How long would it take to even get there?

They can't force the employee to continue to work for the old employer. Not turning up and working in accordance with your contract is a breach of contract, but in normal circumstances an employer can't get a court to compel the employee to work. The court could order the employee to pay damages for the breach of contract, though, if the breach costs the employer money.

But an employer can stop the employee from taking up another job until their notice period from the current job has expired. It would be very unusual, but you might do it if an employee was, e.g, going to a rival, and bringing sensitive knowledge/information with them. You can, basically, force the employee to stay at home twiddling his thumbs until the notice period has expired.

Glass fused light

rgodard80a wrote: »

When you say "contract" you mean contract of employment for a permanent position? Or was she on some rolling year on year contract renewal deal ?

As was mentioned before, if she's a permanent employee, she should be entitled to a tax free redundancy lump sum... something like 2 weeks per year of employment ? (can be corrected here)

She doesn't want over half a years salary tax free in the hand to work the last month?

Assuming she's entitled to redundancy, handing in your notice (or even less than your notice in this case) can potentially mean losing that as she won't be an official employee when the company shuts down.

It's based on service ie from last time the employee was registered with the Revenue as an employee including pre-TUPE employment. A P45 breaks service.

It's a balancing act. if the employee is able to walk into a job on the date the contract ends and they can cope with the stress of the shutdown it's free money.
But if the employee does not have an active employment market by physical location, niche role or any other reason where they may have difficult finding a new job, leaving into a new job, now, makes economic sense.
As for the stress, if what is happening is not communicated and the enviroment becomes very stressful, it's free money you never banked on, so your ongoing personal mental health may result in a rational decision to walk early.

Jaysci20

I've worked at my job for 8 years. I have a 3-month notice period stipulation in my contract. The employer is a prlck. Whenever I leave, they'll be lucky to get one month's notice. They can bring me to court if they want.

NeonSquares

Update: An amicable agreement has been made over the issue with the notice.

The business owner clearly had time to think of their actions and the way she conducted herself over the weekend.

Apparently she apologized for her actions and the civil conversation her and my partner had this morning is how it should've went last week.

When I tell you this is a sticky topic in conversation I mean it, when out with friends and family over the weekend and when we brought this situation up in conversation NOBODY could give a definitive answer and the replys ranged(like in this topic) from "well what did you expect given the notice you gave" to "f%#k that, just walk out" and everything else in between.

I guess the circumstances made for a perfect storm of how a work relationship can really really break down.

SME going out of business.

Employee not abiding by contract(I'm bias on the side of my partner for obvious reasons because it's securing her and our family future).

Employer resorting to legal threats and workplace bullying.

We're moving on from this 'life episode' and once again really appreciate everyone's response in this thread.

IITYWYBMAD

seamus wrote: »

The new employer is not a party to the original contract, they cannot be sued.

That's simply untrue. You cannot impel/coerce an employee into breaking a contract. This type of advice is dangerous.

skallywag

I'm glad things have worked out OP.

One thing which I may have missed though, could it have been the case from the off that if your partner had told her new employer that her notice period was one month, then the who situation could have been avoided? i.e. was it ever the case that new employer was not accepting the one month notice period?

seamus

IITYWYBMAD wrote: »

That's simply untrue. You cannot impel/coerce an employee into breaking a contract. This type of advice is dangerous.

You are the second person to say this, but nobody compelled anyone to break a contract.

You'd want solid documentary evidence that the new employer was coercing the employee to break their existing contract. A simple job offer is not a request or demand to break a contract.

my3cents

seamus wrote: »

You are the second person to say this, but nobody compelled anyone to break a contract.

You'd want solid documentary evidence that the new employer was coercing the employee to break their existing contract. A simple job offer is not a request or demand to break a contract.

That would be my non legal thinking. If the new employer approached the employee first it might be coercion but if the employee goes looking for a new job how can that be coercion?

Glass fused light

seamus wrote: »

You are the second person to say this, but nobody compelled anyone to break a contract.

You'd want solid documentary evidence that the new employer was coercing the employee to break their existing contract. A simple job offer is not a request or demand to break a contract.

But can I entice the employee with a (large) financial incentive where I gain clear commercial advantage by having the employee on staff now that which I would otherwise loose due to the passage of time?

Diceicle

my3cents wrote: »

That would be my non legal thinking. If the new employer approached the employee first it might be coercion but if the employee goes looking for a new job how can that be coercion?

It seems like a grey area - I think knowingly and actively enticing someone to break contract is where the line would logically be - recruiters on Facebook approach employed people on behalf of employers all the time - they'd be on pretty thin ice if the 'initial approach' were the determining factor (?)

skallywag

As an employer I have no way of faithfully knowing what a new employee's current notice period is, and I can only accept what I am told. If the employee is breaking what they have contractually agreed with the current employer then that is their problem, and not mine. I have no duty of care here. As long as I do not actively encourage the new employee to renege on terms which they had already legally agreed to with the former employer then I see no risk from the new employer's perspective.

Glass fused light

skallywag wrote: »

As an employer I have no way of faithfully knowing what a new employee's current notice period is, and I can only accept what I am told. If the employee is breaking what they have contractually agreed with the current employer then that is their problem, and not mine. I have no duty of care here. As long as I do not actively encourage the new employee to renege on terms which they had already legally agreed to with the former employer then I see no risk from the new employer's perspective.

Problem is that at the level it's commercially viable to commit time and resource going after an employee for breach of contract, the employee is usually on a long gardening leave which has an industry standard 'minimum', new employer is gaining a competitive advantage and should have made it their business to know. If informed by the ex-employer, most would back off, as gets tagged as organisation which has no respect for a written contract suggests that anyone contracting with them has an additional business risk.

seamus

Glass fused light wrote: »

But can I entice the employee with a (large) financial incentive where I gain clear commercial advantage by having the employee on staff now that which I would otherwise loose due to the passage of time?

Unless the new employer was aware of the employee's contractual conditions and made an offer that rewarded them for ignoring that contract, you'll find it next to impossible to prove "coercion".

For example, if the employee said they needed 4 weeks notice, and the new employer said (expressly or implied) that the job offer was conditional on the employee starting next week, then it may be actionable.

If the new employer simply makes an offer and asks the employee for a start date, then that's not coercion at all.

Even if they offered a bonus for starting ASAP, you would still have to prove that the new employer was aware of the contents of the employee's contract when they made the bonus offer.

IITYWYBMAD

seamus wrote: »

Unless the new employer was aware of the employee's contractual conditions and made an offer that rewarded them for ignoring that contract, you'll find it next to impossible to prove "coercion".

For example, if the employee said they needed 4 weeks notice, and the new employer said (expressly or implied) that the job offer was conditional on the employee starting next week, then it may be actionable.

If the new employer simply makes an offer and asks the employee for a start date, then that's not coercion at all.

Even if they offered a bonus for starting ASAP, you would still have to prove that the new employer was aware of the contents of the employee's contract when they made the bonus offer.

None of what you have said precludes an ex-employer from suing a new employer/old employee. What you said was "The new employer is not a party to the original contract, they cannot be sued.". That is factually incorrect. Being a party to an original of any contract is immaterial. Employers can and do insist on non compete clauses (for example) between the employee and employer.

There's numerous examples of litigation on NCC's, where the outcomes have been varied. There are multiple examples of restrictive covenants that are written into employment contracts that help protect the employer. Given that we have no knowledge of the details of the employment contract in this instance, your broad statement is inaccurate and dangerous advice.

Wildcard7

Jaysci20 wrote: »

I've worked at my job for 8 years. I have a 3-month notice period stipulation in my contract. The employer is a prlck. Whenever I leave, they'll be lucky to get one month's notice. They can bring me to court if they want.

What would be your reaction if they fired you with one months notice?