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Laws final paper

                             CHAPTER 29

     The firing of Michael Haddle by his employers was a blatant breach of the civil rights Act 1871. The firing was motivated by malice on the part of Health master on learning that their employee had agreed to testify in a criminal case where his employers were charged with fraud.

It would therefore be safe to conclude that by firing Haddle the law was breached. Section 1985(2) of the civil rights Act law provides in part: – that any person who conspired to defer by force, intimidation or threat, any party or witness in court, or from testifying to any matter pending therein, freely, fully and truthfully, or to injure such party or witness in his property on account of his having so attended or testified.

The action by the employees of Haddle breached the provision of section 1985 (2) of the civil rights act because their firing of Haddle was done after learning of his impending testimony before the criminal proceedings.

ISSUES
Could Haddle state a claim for damages by alleging that there was a conspiracy that led to his firing?

From the very outset Haddle was employed as an at will employee who was, to remain employed at the whims

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of health master. So health master can have a limited defense basing on the terms of the contract. That defense stops there though. It doesn’t extend to the case in point because circumstanced surrounding the firing contravenes the civil rights Act 1871 in that Haddle was sacked primarily because he had testified under a subpoena before a grand jury.

In fact Haddle, will as a matter of fact and law succeed in a suit for damages against his employers because from the facts of the case it can clearly be seen that there was a conspiracy to sack him besides, the law is such that:-

“One who maliciously and without justifiable cause, induces an employer to discharge an employee, by means of false statements, threats or putting in fear, is liable in an action of tort to the employee, and it makes no difference whether the employment was for a fixed term or terminable at the will of the employer.

So it matters not whether Haddle was an at will employee what needs to be proved is the firing malicious and was there a conspiracy? The answer in this case will obviously be in the affirmative and Haddle should succeed in an action for damages. He can rely on 42 USC 1985.

As stated earlier the only way that the business can do to avoid the problems caused by firing Haddle is to raise as a defense to their action the fact that Haddle was an at will employee and further that no injury would be occasioned at will employee and further that no injury would be occasioned by firing and that they were free to fire him. But as stated earlier the defense by health, master won’t extend from there. The business cannot wholly avoid the problems caused by the sacking of Haddle.

On whether health master committed Medicare fraud, I would say they did commit the fraud because Haddle their employee cooperated with the federal agents and actually testified in a grand jury. The willingness of Haddle to testify together with the retaliation of health master in sacking Haddle is sufficient evidence that they did commit a crime because why would Health master sack Haddle if no crime had been committed on their part?

Of course, Haddle was a whistle-blower because he made the going-on at Health master known to the grand jury and the federal agents. A witness, such as Haddle can be a whistle-blower if he makes criminal activities, corruption and other crimes known to the authorities. So Haddle was a whistle-blower and an effective one at that case.

    CHAPTER 30

To begin with, the initial employment of Jeffrey Hirsh berg by BDO is wholly governed by the law of agency. It therefore suffices to say that upon employment, an agency relationship arose between Jeffrey and BDO. The law of agency as it arises out of five ways vs.:- express, by estoppels, ratification, implication of the law and by presumption of the law (express appointment).

By virtue of employment, and subsequent promotion, therefore Jeffrey entered into a fiduciary relationship (trust relationship) where he had to work, pursuant to Agency law, the best interest of the principle. In fact, he signed the “managers Agreement” thus becoming fully bound by the conditions set there in which included among others, maters relating to termination of Agency. In this case, (relating to termination) termination was to take effect ride: – and as it would appear,

(a)    Mutual consent and

(b)   Revocation by the principle.

This agreement further stated that upon termination, Jeffrey was to stay away from relate business for a period of 18 months or pay damages if he so sought to engage in business or pay damages if he sought to engage in business before the elapse of the period. This was actually meant to curb a situation where immediately after   termination of employment or otherwise Jeffrey would “rob” BDO of clients.

A separate contract exist ed between Jeffrey and BDO which contract was the signing of the managers agreement and breach of which entitles damages to either parties. And since Jeffrey was an in breach of the contract, he ought to pay the agreed damages.

Whether or not the clients were brought to Jeffrey’s firm from outside contacts would be immaterial for this case because he had breached the contract.

ISSUES FOR DETERMINATION
Is the reimbursement clause valid and enforceable?

The answer to the first issue is to the affirmative because this was a commercial agreement. In

Commercial agreements it will be presumed that the parties intended to create a legal relationship and made a contract (Chseshire, Fifoot and Furmston, Law of contract).

In this case of Bower man v Association of British travel Agents Ltd. a claimant booked a holiday with a tour operator who was a member of the defendant association. The tour operator displayed a notice which stated that in the event of financial failure of an ABTA member, reimbursement would be made. The tour operator became insolvent before the holiday. A claimant sued for reimbursement.

The court in holding that there was a contract, said:-

The document is intended to be read and would reasonably be read by a member of the public as containing an offer of a promise which the customer is entitled to accept by choosing to do business with an ABTA member.

So by signing the “managers agreement” Jeffrey put himself in a contractual relationship with BDO and his subsequent breach of it makes him liable to pay damages. So the clause should be reinforced against him as a valid and restrictive covenant. Further, since restrictive covenants move with the subject matter, then damages will move with his deviation from the terms of the contract.

       How would BDO improve its protection from accountants who leave its employment?

The first step is to ensure that accountants leaving the firm don’t trade or purport to trade in the name of BDO and this would be done by notification of the general public through the media, newspaper adverts and so on. Such notices should actually warn the general public that an accountant has ceased to be an employee of BDO and so on.

The adverts should also distance itself from liability if members of the public deal with such people. Criminal sanctions should also be imposed on rouge accountants.

Secondly while so employing accountants, the principals should state clearly and as per the law of agency, the mode of termination which usually ranges from relocation, death to insanity. This is to avoid situations where accountants decide to leave by resigning.

Also by from time to time publishing the names of its employees and when there’s a termination inform the public of the new employees thereby emphasizing the need to only deal with the firm’s current employees.

What documentation would assist BDO in proving its case and the appropriate amount of damages?

The “managers’ agreement” is the substantial content of the contract. It is actually the spine of the contract. It is there that the “reimbursement clause” can be found and since it was signed by both parties, it is the document that can be tendered in court to prove the contract and damages specified.

CHAPTER 31

My ruling in the Donna Ivy case would revolve around three issues.

One: The employers’ duty of care to workmen

Two: whether or not Donna was an employee thereby entitled to care and from whom.

Three: The meaning of proper working system under the law of torts

The duty of care by employers to employees was adequately addressed in the Wilson and cycle co case where the court held.

A duty which rests on the employer and which is personal to the employer, to take  reasonable care for the safety of his workmen, whether the employer be an individual, a firm or a company and whether or not the employer takes any share in the conduct of the operations.( If Barton shill coal or Reid(1858)

It therefore ought to be noted that the duty of care is a personal duty and one of a general nature.

This is so because there are cases where the employer is in breach of his personal duty and yet no employee is at fault.

On the second issue, I will find for the plaintiff that she was an employee so that the contention by the city that the bus drivers including Donna are not employees will whittle. Reasons being, going by the courts ruling in the Wilson’s and cycle case. Employers should take reasonable care for the safety of their employers. The city owned the buses and but did not employ the drivers. But logically the transport system won’t be complete without drivers and by extension passengers. So the city being owners of the bus should have put adequate and working system in place to ensure not only the safety of the drivers but all on board.

So far purposes of proving liability one must first prove that he or she was an employee to quality for damages in breach of the duty.

It was the duty of the city to ensure that the system worked properly because it was the city that owned the bus system. The law of tort places a duty on an owner of premises to ensure that due care is exercised so that omissions don’t arise that will cause harm to others. This duty by operation of law is placed on the city. This duty is not delegable operation of law is placed on the city. This is not delegable operation of law is placed on the city. This duty is not lies squarely on the city.

It therefore goes unsaid that by virtue of the city contracting an independent company (Laid law transportation) to manage and maintain the bus system doesn’t in itself mean that the responsibility by the city to ensure a safe work place is delegated to laid law transportation.

Any attempt therefore by the city to absolve itself from liability cannot stand. The suit against laid law would be instituted for breach of contract and damages awarded to the city.

3. The third issue regards an analysis of a proper working system under the law of tort.

Again, it is the responsibility of the employer or a person to whom responsibility is paced to ensure a proper working system.

The scope of this requirement has been considerably increased by the decision of the court in the case of speed v Thomas Swift & co ltd[1943] K.B 557 where the court held:-”the plaintiff could recover in negligence because the defendants had not, in the particular circumstances laid out a safe system of work.”

This was a case where the plaintiff was engaged in loading a ship from a barge. The operation required the part and starboard winches to be used together while the ships rails were left. In the position a hook caught in the plaintiff.

Whether a system malfunctions or not is not material the plaintiff must be compensated for it will be a breach of duty to cause a system to multifunction or fail to maintain it. Therefore the suit against the city should stand and Donna Ivy would recover damages.

References

1. Street, H (1976) the law of torts. 6th ed. Butterworth & co ltd.

2. Wilson and cycle coal ltd. [1983] A.C 57 at p.g 84

3. Speed v Thomas Swift & co .ltd [1943] K.B 557

4) Cheshire, Fifoot and Furmston. Law of Contract 15th ed. Oxford University Press 2007.

5) Bower man Association of British Travel Agents Ltd. (1996) CLC 451

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