Notice handed in getting nasty

[ang1170]

Hi Ang

You first made this point back in your first post on the thread.

http://www.askaboutmoney.com/showpost.php?p=1388609&postcount=28

I have made it clear all along that she should ask to go early, but not insist on it.

What point was that? I simply restated that the OP was asking was the clause enforceable. The answer by the way seems to be "legally, probably yes, practically, probably no". This is not either asking or answering if they should break the terms of a contract.

And, no, you didn't make it clear all along that she should ask anything: your first post on the issue made no mention of negotiation, and included a gratuitous insult, calling the questioner "nasty".

"Presumably she read her contract when deciding on her current job? She saw the notice period of 3 months and signed the contract.

Presumably when she was offered the other job offer, she told them that she had to serve 3 months' notice? And presumably they agreed to this. So of course, they will wait.

As an employer, I would be very annoyed if someone said that they wanted to serve a shorter notice period in the contract. If they came to me and gave me formal notice of three months and then asked nicely if they could go earlier, I would talk to them about it. But I would react very negatively if someone "put in for 5 weeks" whatever that means.

It seems to me that your fiancé is being nasty and not the employer."

 

[Setanta12]

Non-compete clauses in contracts have been held by the Courts to be unfair, yet were originally signed by both parties. Contract terms are not inviolable. Where the terms are such that they are outside the norm for the industry, then and only then would I consider a unilateral break.

 

[Brendan Burgess]

And, no, you didn't make it clear all along that she should ask anything: your first post on the issue made no mention of negotiation, and included a gratuitous insult, calling the questioner "nasty".

Hi ang

I thought that my first post, which you have helpfully quoted in full, was quite clear

" If they came to me and gave me formal notice of three months and then asked nicely if they could go earlier, I would talk to them about it. "

As an employer, we always had one months notice in contracts as far as I can remember.

I always asked employees who were thinking of leaving to let me know and many of them did, long before they got a job offer. We often helped to find the person a new job, using our contacts. We allowed people to leave before their official notice period, because their new employer needed them urgently. And we also allowed new employees to go back for a day or two to their old employers to help with the handover.

The first post referred to the employer as "nasty" when he seemed to be just insisting that the contract be adhered to.

Kildavin suggested ignoring the contract.

 

[Brendan Burgess]

Where the terms are such that they are outside the norm for the industry, then and only then would I consider a unilateral break.

We have to agree to disagree.

What is the point of having a contract? Why not just say "the norms for the industry apply"

 

[Setanta12]

We have to agree to disagree.

What is the point of having a contract? Why not just say "the norms for the industry apply"

You may as well ask, 'Why do Courts set aside agreements entered into ?' ... but they do.

 

[ang1170]

The first post referred to the employer as "nasty" when he seemed to be just insisting that the contract be adhered to.

Again, that's your interpretation: there's nothing in the OP to suggest this. My reading is that it was the response of the employer to attempts to negotiate.

Even if your interpretation was correct, you think it's OK to respond with similar language?

 

[Ceist Beag]

Ok so I think Brendan we're in agreement on some parts here although I still think you were implying that the OP was trying to do something they never claimed to, even if you put in the caveat of not being sure. But that aside, the main question from the OP remains open as far as I'm concerned.
There is a job offer and the OP's fiancée tried to negotiate leaving his/her current job earlier than the 3 month notice period (terminating employment in 9-11 weeks rather than 12 weeks as per the contract, but effectively leaving in 4 weeks and using 5 weeks holidays for the remainder). I think, if I were in this position, and if the employer point blank refused to negotiate, I would work for 7 weeks and then use the remaining 5 weeks holidays to fulfil the contract. This would mean informing the company who made the job offer that I could start in 8 weeks time. I think most companies would be ok to wait 8 weeks.
It would have been better, as Brendan said, to have thought this through before any job offer was made and to have informed the company of the notice period in advance. However given the situation the OP's fiancée is now in, I think this would be the best way out. It doesn't break any contract. The current employer might argue they are not obliged to allow the 5 weeks holidays be used but given it sounds like the employer is being very unreasonable here I personally would have no concerns about that - it sounds like there is no relationship to maintain there anymore anyway.

 

[mandelbrot]

Hi ang

I thought that my first post, which you have helpfully quoted in full, was quite clear

" If they came to me and gave me formal notice of three months and then asked nicely if they could go earlier, I would talk to them about it. "

As an employer, we always had one months notice in contracts as far as I can remember.

I always asked employees who were thinking of leaving to let me know and many of them did, long before they got a job offer. We often helped to find the person a new job, using our contacts. We allowed people to leave before their official notice period, because their new employer needed them urgently. And we also allowed new employees to go back for a day or two to their old employers to help with the handover.

The first post referred to the employer as "nasty" when he seemed to be just insisting that the contract be adhered to.

Kildavin suggested ignoring the contract.

It's all well and good that you were a soft and cuddly employer Brendan but that is clearly not the case here.

I struggle to envisage a scenario other than perhaps at the very top end of the business world, where a role becoming available couldn't be filled in substantially less than 3 months, and any employer who is insisting on the contract being adhered to to the letter is clearly doing so simply out of spite and to make the transition difficult for the employee - that is what I would infer from the OP and the OP's further update confirms it.

I'm pretty sure everyone will agree that it is basic common sense that once you know someone is moving on, it is in both parties' best interests to conclude that move as soon as is convenient for both parties, having regard to the needs of the business.

To me, the comparisons to mortgage defaults and bankruptcies are a total red herring; those are purely financial relationships, whereas an employment is much more than that - i.e. the employee is contracting to work, and the employer to pay them for that work and fulfil various other obligations as an employer (Health & Safety etc...).

The bottom line for me is that it boils down to how and why the employer is insisting on the 3 month notice period being served - if they will already have a replacement in and motoring within 5 weeks, but are insisting on the contract being honoured just to be awkward, then I'd have no qualms about walking. If on the other hand, it was somehow the case that they would be at a definite loss and wanted to stick to the 3 months because of that, then I'd view it differently.

In other words I'd be guided by my own common sense and ethics; rather than blindly following a document I signed in good faith in the expectation of both myself and the other party being capable of exercising our own respective common sense and some level of mutual respect.

 

[Sunny]

We have to agree to disagree.

What is the point of having a contract? Why not just say "the norms for the industry apply"

Brendan, I think people are simply pointing out that employment contracts are not some sacrocent documents that have to be fulfiled no matter what. Employment contracts are broken every day. My employer broke mine last night by ringing me at 8pm. Maybe I should have pointed out the legal situation and told him that he was acting immorally but oddly enough I don't think he would appreciate that. Is that fair? No. Is that the real world? Yes. Unless you think everyone should work to rule?

In the case of the situation with the OP, I think everyone agrees that people should try and fulfill their contractual obligations as much as possible. If the employee tried to re-negotiate the clause in her contract and failed, she is free to break that contract and accept the consequences. It doesn't make her actions wrong or immoral.

 

[Brendan Burgess]

However given the situation the OP's fiancée is now in, I think this would be the best way out. It doesn't break any contract. The current employer might argue they are not obliged to allow the 5 weeks holidays be used but given it sounds like the employer is being very unreasonable here I personally would have no concerns about that - it sounds like there is no relationship to maintain there anymore anyway.

I agree fully with this approach. If she is entitled to 5 weeks' holidays, then she is entitled to them.

I don't think that they could argue that the 5 weeks can't be used? They could argue that she takes 5 weeks' holidays now and work the last 7 weeks of her notice. But that would be unreasonable.

 

[Brendan Burgess]

The bottom line for me is that it boils down to how and why the employer is insisting on the 3 month notice period being served - if they will already have a replacement in and motoring within 5 weeks, but are insisting on the contract being honoured just to be awkward, then I'd have no qualms about walking.

That is not the bottom line for me. I respect contracts which I enter into. That is the bottom line for me.

 

[Brendan Burgess]

If the employee tried to re-negotiate the clause in her contract and failed, she is free to break that contract and accept the consequences. It doesn't make her actions wrong or immoral.

Of course, it makes it wrong and immoral.

The consequences for the employer are disruption. There are virtually no consequences for the employee.

I am fully open to consensual renegotiation of contracts. But what is being suggested here by some posters seems to be something different: "Please agree to reduce the notice to 4 weeks and if you don't I will break the contract anyway."

 

[Jim2007]

In other words I'd be guided by my own common sense and ethics; rather than blindly following a document I signed in good faith in the expectation of both myself and the other party being capable of exercising our own respective common sense and some level of mutual respect.

How can you sign a contract in good faith, if you only indent to carry it, if is suits you at the time???

But here is the thing, if you do break the contract and the employer is pig headed about, then you should not be surprised if he is will to also kick in a few hundred Euro to seek an injunction preventing you taking up the new position and naming your new employer as a party to the action... it really does not matter if he gets it or not because the job offer will probably disappear - no one wants to get involved in a law suit if they can avoid it...

 

[Steven Barrett]

I don't think that they could argue that the 5 weeks can't be used? They could argue that she takes 5 weeks' holidays now and work the last 7 weeks of her notice. But that would be unreasonable.

Of course they can refuse her 5 weeks annual leave. It is most probably in her contract that she gets a certain number of holidays a year and the time she takes them has to be agreed by the employer.

Also, even if she did take the 5 weeks holidays, she would still be their employee for that period. There is probably a clause in her contract from having dual employment in the same industry, preventing her from taking up her new role during that period.


Steven
www.bluewaterfp.ie

 

[mandelbrot]

That is not the bottom line for me. I respect contracts which I enter into. That is the bottom line for me.

So you will adhere to a contract blindly, without even attempting to renegotiate a term that you subsequently realise is unpleasant for you?

 

[Sunny]

Of course, it makes it wrong and immoral.

The consequences for the employer are disruption. There are virtually no consequences for the employee.

I am fully open to consensual renegotiation of contracts. But what is being suggested here by some posters seems to be something different: "Please agree to reduce the notice to 4 weeks and if you don't I will break the contract anyway."

I just told my boss he was immoral for ringing me last night outside my contracted working hours. I pointed out that we should have tried to consensually renegotiate my contract before the phone call and failing the successful negotiation, he shouldn't have unilaterally decided to break the terms.

I have employed senior counsel and am planning to get an injuction against my employer to stop any furture transgressions. My employer and I continue to have a great working relationship and I see a long future for me in this company. He understands that a contract is a contract.

 

[Purple]

Lol

 

[Brendan Burgess]

So you will adhere to a contract blindly, without even attempting to renegotiate a term that you subsequently realise is unpleasant for you?

Hi mandelbrot

I sign contracts in good faith. I realise that they give me rights and also commitments. Do you know what? Sometimes, I regret having done so as the contract restricts me in some way. I would try to negotiate a change, but I don't just break the contract because it's "unpleasant". I am astonished that some people seem to think that this is ok.

I set out my full position above.

If you have a contract, and you can adhere to it, you have a moral and legal obligation to do so.
If you wish to renegotiate that contract, you should talk to the other side about renegotiating it. If you can reach agreement on the renegotiation, that's fine. If you can't, you can terminate the contract, but within the termination terms.
If you break the terms of a contract because you cannot adhere to them, there should be no shame. For example, if you lose your job and you can't pay your mortgage repayments.

.

I am sure that there are many tenants who found themselves in leases which they considered "unpleasant" as rents had fallen. They could ask their landlord for a reduction and if they were a good tenant, the landlord probably agreed. Of course, they were free to move out as soon as the tenancy was up.

 

[Sunny]

Once again Brendan, no-one is saying that people should break a contract because it is "unpleasant". That is completely mis-representing what the argument is about. If a three month notice period is included in a contract for a very good reason i.e. very specialised role then employees should repsect the position that the employer is in. Chances are the new employer will have a similar clause. If there is a non-compete clause written into a contract, employees should also respect that because it is usually included for a very valid reason. The Courts can decide on the validity of the clause if there is a dispute.

The issue is with a clause like a 3 month notice period being inserted into a contract to act as some sort of detriment to leaving instead of trying to protect an employer from potential disruption or loss. Do you really think that minimum wage employees should have 3 month notice clauses inserted in their contract? You may very well say that people shouldn't sign a contract but try telling that to someone who knows that there are 1000 other people outside the door that will sign it.

 

[Brendan Burgess]

Once again Brendan, no-one is saying that people should break a contract because it is "unpleasant".

Mandelbrot used the term "unpleasant". I think he implies that he would not be bound by it. But he can confirm himself whether that is his view or not.

The Courts can decide on the validity of the clause if there is a dispute

There is a three month clause in this contract. It's not a non-compete clause. It's a 3 months' notice clause. It is valid. And it's not right to suggest that it should be unilaterally ignored.

Do you really think that minimum wage employees should have 3 month notice clauses inserted in their contract?

No I don't. But people are free to enter into such contracts or to reject them as they see fit.

You may very well say that people shouldn't sign a contract but try telling that to someone who knows that there are 1000 other people outside the door that will sign it.

The three month term is of advantage and disadvantage to the employee. They have to accept both if the employer is unwilling to change it.