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My son recently was dismissed from his job for bad timekeeping and absenteeism.
Am I correct in saying that as this dismissal is not for gross misconduct but the lesser reason of misconduct then he is entitled to pay in lieu of notice, he has 3 completed years of service?
His contract says: "The Employer may terminate this Agreement without notice or pay in lieu of notice in the case of serious or persistent misconduct such as to a major breach of the Employer's disciplinary rules."
With regards to his holiday pay the contract says: " The employee will not be entitled to be paid in respect of holidays accrued due to be taken as at the date of termination of employment."
After following the disciplinary procedures he was dismissed on the spot and at the time of his dismissal had only taken a few days of his holiday entitlement.
Your son will be entitled to his holiday pay only if he was dismissed and not sumararilly dismissed, this will also mean he will be paid notice as per his contract. If he has been sumararilly dismissed then I'm affraid he will only get paid up to the time of his dismissal. His letter of dismissal will state whether or not he was dismissed or sumararily dismissed, I wouldn't assist the company though by asking the question. If the letter is silent just submit a letter asking for his notice and holiday pay.
Legislation has replaced the clause in his contract by default the part that says he is not entitled to holiday pay at termination of employment.
You say that your son was dismissed on the spot after (the company?) followed the disciplinary procedures. Was their a full investigation, was the disciplinary held by someone other than the person who investigated the matter (and someone more senior), was he given the right to be accompanied by either a Trade Union Representative or a work colleague, was he given copies of all the evidence well in advance of the disciplinary to enable him to prepare his defence and has he been notified in writing the outcome and his right of appeal?
If not he will potentially have grounds to go to tribunal but would have to appeal first to exhaust the internal procedures.
The actual words used in his dismissal letter are "The charge of misconduct is therefore upheld and we have no alternative but to dismiss you with immediate effect. "
I believe this is a dismissal and not a summarily dismissed and therefore entitled to both holiday pay and pay in lieu of notice.
I believe he is too from what you have quoted in the letter.
He will need to appeal against the decision and write requesting his outstanding payments.
The reason he needs to appeal are to protect his position because he might not be able to go to tribunal to claim the pay he is owed if he has not gone through the appeal process first.
dismissal with immediate effect means just that, unfortunately. It is a summary dismissal without notice. This would particularly appear to be so if they have not written to him about any notice pay or notice period and his employment terminated as stated, with immediate effect.
further to my posts yesterday, after appealing your son would need to raise a formal grievance against the company over his claim for holiday and notice pay.
This would have to be done before the tribunal would accept any claim for either unfair dismissal or for monies owed.
Holiday Pay and Pay in Lieu of notice
is not for gross misconduct but the lesser reason of misconduct then he is entitled to pay in lieu of notice, he has 3 completed years of service?
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