Trade Union and Labour Relation

Questions: Part 1 Read the case of Medivance Instruments Ltd v Gaslane Pipework Services Ltd and another [2002] All ER (D) 111 (Apr) and using this case only answer the questions below. 1. What judges heard this case in the Court of Appeal? 2. Who was the appellant and who were the two respondents in the Court of Appeal? 3. What is the difference between the test of merchantable quality Sale of Goods Act and the test of fitness for purpose in? 4. Did s.14 of the Sale of Goods Act apply to Vulcana? Give reasons for your answer. 5. Why did Neuberger J limit the appeal to the issues around s.14 and the tortious equivalent? 6. According to the appellant, why was the heater not of merchantable quality and/or fit for purpose? 7. What effect would it have on business if a claim under s.14 was won every time it was shown that the product in question could have been made safer? 8. Did the judges believe that a different heater should have been supplied to the appellant? Give reasons for your answer. 9. Why did Neuberger J rely on the case of Wright v Dunlop (1973) 7 KIR 255? 10. According to Mr Brown, why might it be dangerous to always allow a seller to avoid liability through warning the buyer of the defect? (2 marks) 11. Why did Neuberger J refer to the cases of Holmes v Ashford and Hodge Sons v Anglo American Oil Co.? 12. Which of the following were material facts in the case? a. If the appellant had known that there were heaters with thermostat devices included, he would have bought one. b. The appellant had told the respondents that the heater would be used in a packing area. c. There were a mixture of heaters on the market including those that contained a thermostat and those that did not. d. Vulcana's brochure described the heater as having an "overheat switch [which is] fail safe on overheating" and "Full safety protection provided electronically". e. The heater complied with the British Standard and had been certified by British Gas. f. The instructions for the heater contained a clear warning that it should be left unobstructed. This warning was brought to the attention of the appellant. 13. Which of the following was the ratio decidendi of the case? If you think a statement is part of the ratio decidendi explain why. If you think a statement is not part of the ratio decidendi explain why. a. It would be inappropriate for a court to impose, through the medium of tort or of implied contractual terms, any obligation on a seller which involves a higher duty than that which the parties have expressly imposed in their contract, or which the legislature has imposed through section 14. b. The heater was of merchantable quality and fit for the purpose for which it was supplied. c. Where a commercial buyer has previous experience buying a similar product and is aware of the risks in using that product, then the product is likely to be fit for purpose under section 14. d. If it can be shown that a desirable improvement to the article was common practice, easy and cheap to achieve, and had obvious benefits, then a buyer's prospect of establishing lack of merchantable quality or of suitability for purpose obviously would be enhanced. e. The fire was caused by a blockage on the front grill of the heater which resulted in the temperature rising to such a level that the containers ignited. 14. Mr Matthews owns a shoe shop. The shoe shop has a shop floor and a small, narrow, stock room which contains hundreds of cardboard boxes. The cardboard boxes contain shoes. Mr Matthews wished to purchase a heater for the stock room to use during winter so that his two stock room staff would be kept warm. Mr Matthews asked JTL, a heating company, to visit the store room and recommend a heater to purchase. The JTL representative recommended their standard heater which did not include a safety guard or thermostat. JTL installed the heater and explained to Mr Matthews that nothing should be placed within a metre radius of the heater. Mr Matthews signed a document confirming that he understood this. A few weeks later, Mr Matthews left an empty cardboard shoe box directly in front of the heater and within an hour the stockroom had caught fire. Mr Matthews is now claiming that the heater was not of merchantable quality and not fit for purpose. He had never purchased a heater before and had trusted JTL. JTL believes that the heater conformed to British Safety Standards and they adequately warned Mr Matthews not to put anything within a metre radius of the heater. Using only the case of Medivance Instruments Ltd v Gaslane Pipework Services Ltd and another, advise JTL on these claims. (15 marks) Part 2 Read the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act) and using this statute only answer the following questions. 1. What is the short title of the Act? 2. What is the long title of the Act? 3. On what date did the Act come into force? 4. What linguistic presumption would the courts use to determine whether something is included in s.137(5)? Give reasons for your answer. 5. How would courts determine what advertisement means in s.137(3)? 6. Sophie is looking for a job as a teacher. She has recently applied for a teaching position at Hansroad Secondary School. The Head Teacher of this school is a strong believer in supporting a national teaching trade union called Teach Excel Union. This union helps to compile a short-list for interviews held at the school. The union is aware that Sophie is not a member of any trade union and refuses to offer her an interview for this position. Advise Sophie. 7. Marlon is a builder. He attended an interview to become a full-time builder at a construction company called Zeon Limited. In the interview the manager, Henry, asked Marlon whether he was a member of any builderstrade unions. Marlon replied that he was not a member. Henry told Marlon that he would be offered the job if he did not become a member of a trade union. Marlon felt uncomfortable with this request and explained that he could not guarantee that he would never become a trade union member. Henry refused to offer the job to Marlon. Marlon experienced severe stress and anxiety after this refusal and he was unable to work for one month. Advise Marlon. 8. IT World Ltd is an IT retailer that sells computers. Most staff members are members of an IT trade union. IT World Ltd started a redundancy process and proposes to dismiss 150 employees. IT World Ltd started consulting 35 days before it dismissed an employee for redundancy reasons. As part of the consultation, IT World Ltd consulted with senior staff members. One of these senior staff members is a trade union representative. There are five trade union representatives in total at IT World Ltd. IT World Ltd orally told the senior staff members how many people would be made redundant and the reasons for the redundancy. They also asked some other staff members how IT World Ltd could reduce the number of employees to be dismissed. However, when one staff member made a suggestion, IT World Ltd refused to listen. Advise IT World Ltd on their liability under the Act. 9. A catering company has suggested that they need to dismiss 25 employees. Under what rule of statutory interpretation would the company be required to start a consultation under s.188(1) and why? 10. Marketing Solutions accountant, Simon, is a member of an independent trade union which is recognised by Marketing Solutions. Simon has requested time off to represent the union at a trade union conference. Marketing Solutions has told Simon that as it is near the end of the financial year, they need him to work. They have denied Simons request to attend the conference. Advise Simon. Answers: 1. The names of the Judges who heard the appeal are as follows: Lord Justice Thorpe Lord Justice Mance Mr Justice Neuberger 1. Medivance Instruments Ltd was the appellant in the matter. Gaslane Pipework Services Ltd and Vulcana Gas Appliances Limited are the two defendants of the case. 2. There is basic distinction between Section 14(2) and Section 14(3) of the Sales of Good Act 1979. Section 14(2) of Act, applies an implied term that the goods supplied shall be of good quality. Section 14(3) of the Act, states that the goods supplied shall be of the quality for which it has been purchased. The difference lies in the fact that one speaks of the quality of the product in ordinary sense and another speaks of the purpose for which the product has been bought. 3. In my opinion Vulcana is responsible under Section 14 of the Sales of Good Act, because as the manufacturer of the heater, it should have taken care of the fact, that it has mechantable quality and is fit for the purpose for which it has been purchased in the due coarse of the business. In that way Vulcana was negligent in fulfilling both the implied conditions. 4. Justice Neuberger was of the view that the appellant was well aware of the fact as to what to be used and what not. The thing used by the appellant was not permitted by the supplier and as such the appellant was well aware of the risk or incident that has taken place in the due course of using the restricted thing. Hence on the above ground, J Neuberger limited the scope of appeal involving Section 14. 5. According to petitioner the heater supplied was not of standard quality nor was it suitable to serve the purpose. The appellant was of the opinion that there was no thermostat that would have prevented from happening of the event. Moreover, no pan was taken by the defendant for installation of such device. 6. If every company would bring up an issue under Section 14, seeking that the goods supplied are of not merchantable quality or is not suitable for the purpose, then the manufacturer companies would run at a loss and they would have to keep compensating for no reason . Section 14 shall be critically judges so as to save the manufacturers from any unfair decision for the fact that if it becomes an easy practice for the buyers then would be broadly enhanced. 7. The judges were of the opinion that the heater would have no doubt could have been more safer, but it doesnt make the change the fact that the product supplied was not of standard quality as per required by law nor was it suitable for purpose . The reason for stating such a comment is that firstly Section 14 doesnt requires to impose high grade quality of goods as a consequence of ordinary language. Secondly, they were of the opinion if desirable improvement to the article was a common practice, then the buyers prospect would have definitely enhanced . Thirdly, if they buyer had already known the fact that other heaters in the market was being served with thermostat, then they would have bought it from some other place or would have mentioned there requirement while placing the order. 8. The point on which the judges relied on the case of Wright v Dunlop, is the duty of reasonable care. The judges were of the opinion that if a manufacture discovers that the product is unsafe in any manner, then it is his duty to cease the delivery of such a product or if that cannot be done, then atleast it should inform the buyer about the relevant facts and the risk linked with it. This is known as the reasonable duty of care borne by the supplier to the buyer . 9. According to Mr Brown, if a seller is often permitted to neglect his liability for a defect, just by giving an intimation about any defect, then it is to be presumed that the seller is being allowed to define the extent of his duty in regards to a contract, regardless of the situation. 10. Both the case of Homes v Ashford and Hodge Sons v Anglo American Oil Co, dealt with one point that is negligence. It was selected on that ground by the judges. 11. Material Facts: If the appellant had known that there were heaters with thermostat devices included, he would have bought one is a material fact of the case. It is a relevant fact of the case, that he petitioner had informed the respondents about the issue of placing the heater in the packing area. There were a variety of heaters available in the market of which some contained a thermostat and some did not is a material fact of the case. 12. Vulcana's brochure described the heater as having an "overheat switch [which is] fail safe on overheating" and "Full safety protection provided electronically" not a material fact in the case . The heater abided with the standard set forward by the British Standard and had been passed by British Gas is a material fact of the case. It was clearly instructed that the heater shall be left unhampered. This information was provided to the petitioner is a material fact of the case. 13. Ratio Decidendi of a case: It is definitely one of the ratio decidendi of the case. It would be definitely incorrect for the court to impose on the seller on the basis of tort or implied contractual term, the higher standard of duty under section 14 as Section 14 of the Act states that there should be a merchantable quality of the product in the ordinary sense. Ordinary sense doesnt include high standard within its scope . It is a ratio decidendi of the case that the product supplied was of merchantable quality and suitable for the purpose, as the heater supplied was confirmed by the British Standard to be safe and at the same time the appellant was well aware of it. The following point that where a buyer is already aware of the product as he has bought it before and also aware of the risk involved it, is likely to be fit for the purpose of Section 14 is not a ratio decidendi of the matter as previous purchase doesnt decide the quality of the future purchased product . It is to be set herein that it is a ratio decidendi for the case as it is quite a logical view in the eyes of law, that if every purchaser claims for a better quality, then most of the time goods will be returned and suppliers will be penalised, thereby causing loss to the suppliers in turn. It is not a ratio decidendi of the case as it has been noted that the appellant had left cardboards in front of the heater which he was not permitted to do. 14. ADVICE: No electric appliances that can cause hazard, are made available to the market for the buyers unless the product has passed the test of standard of production set by the British Standards Institution . The heater supplied by the JLT Company was confirmed by the British Standards and then only it was made available in the market for the buyers to avail it. Secondly, JLT Company as repeatedly informed Mattew about the safety guard or absence of thermostat in the heater and about the rick involving it. After warning Mattew, he was made to sign a document which stated that he was well aware of the facts of risk that are involved and he have been warned by JLT Company in that regards. Observing the above mentioned matter, JLT Company shall not be held liable under section 14 of the Sales of Good Act, since the goods supplied by them was at the first place confirmed by the British Standards and secondly they have warned about it to Mattew, which implies they have done reasonable duty of care towards the buyer as prescribed law . Hence in that respect, the JLT Company shall put forward the expert evidence of the British Standard and at the same time shall also produce the signed document as evidence stating that Mattew was well aware of the risk involved in the heater. PART II: Short Title of the Act is Trade Union and Labour Relations (Consolidation) Act, 1992. 1. An Act to consolidate the enactments relating to collective labour relations, that is to say, to trade unions, employers associations, industrial relations and industrial action. 2. The act came in force on 16th July, 1992. 3. Section 137(5) states that any person shall be presumed to have suffered refused employment, if he requires employment under a person and for a case that person deliberately omits or refuses to proceed with the process of his application or causes him to cease his application or intentionally avoids to offer him employment or offers that person such a form of employment that no employer of reasonable mind would offer or acceptable in nature or makes him an offer of employment but at the same time forces him to cease his application . 4. Advertisement means every form of advertisement or notice that invites employment offers to any person who might or might not be a part of any trade union and who might not satisfy the conditions provided in the advertisement for the employment for which he is subjected to refuse employment . 5. Sophie is looking for a job, but she has not been offered job for she is not found to be a part of any trade union . She is presumed to be taken refused employment under Section 137(5) (c) which states that she was deliberately not offered employment. She can file before the employment tribunal for her right to employment is being infringed for which she needs to be compensated . 6. Section 140 allows a claim to be lodged before the employment tribunal for a complaint under Section 137. Herein, Marlon was refused employment because he was given an unreasonable condition by the employer that he can never join a trade union, which is a complaint under section 137 (5) (d). He can lodge a complaint under Section 140 claiming for compensation for the loss suffered by him due to refused employment. The tribunal in its discretionary power can either order the respondent to pay a compensation amount or can advice to act in a way recommended within a prescribed period. 7. It is a well established rule under Section 188 of the Act, that where an employer wishes to dismiss as redundant 20 or more employees within a period of 90days or less, the employer will be under an obligation to suggest all the person who are appropriate representatives of the employees regarding the dismissal . If the organization wishes to dismiss 100 or more than 100 employees, then they are to consult representatives atleast 45days before the first dismissal . Herein in this matter the IT world Ltd took a decision to dismiss 150 employees and consulted only 35days prior to first dismissal. Secondly they rejected to hear the consultation of one of the representatives of the employees, which is mandatory under Section 188 (1). 8. It is required under Section 188 (1), that ifa company decides to dismiss 20 or more employees as redundant, then it need to consult with all the representatives of any of the employees 90 days prior to the first dismissal, which must be atleast 30days. 9. It has been held under Section 170 of the Act, that an employer is bound to allow an employee who is a part of trade union identified by the employer, time off through his working hours to take part in activities of union . Simon was not allowed time off by the marketing solutions. Simon can lodge a complaint against his employer under Section 170 (4) stating that his employer rejected to approve his requested time off. References Addison, J, 'The consequences of trade union power erosion'. inIZAWOL, , 2014. 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