Alleged gross misconduct thoughts please.

[capt1964]

Thanks Hanzo received a letter today stating that the legal rep is on annual leave and the finding will be sent out when they return. Just confirmed that the appeal had been dismissed

[capt1964]

Just received ET1 from Union. Need to fill it in. In set out details for complaint so far I have got.

The decision was not reasonable based on the facts of the case

Acas code of practise states all employees should be treated equally

Not covered in my terms and conditions

Level of punishment unreasonable bearing in mind the facts and punishments to other employees

No financial or personnal gain to be made

How was it deemed gross Misconduct

 

Any help with right phaseing or additional points gratefully received

[capt1964]

Have sent in the ET1 to the union who are going to decide whether to proceed. Quick question should I have been informed prior to the hearing and appeal of any witness's that were being called. I know in a court you have to be informed but not sure about this. Seems unfair as you do not have chance to prepare any questions for them

[capt1964]

Got a reply from the union solictitor they have stated that they only deem my chance of success at a tribunal as 50/50 so therefore are not willing to progress the case. They stated that I should write a grievance letter what is this and are there any templates that I could use.

[Goldlady]

I can't help with the letter but I would not rely on the union about going to the tribunal. OK so the union won't back you but you don't need them - just make sure you don't run out of time.

 

As regards a grievance letter - I guess you need to tell your story yet again. But who is this letter going to and what is it supposed to achieve?

[capt1964]

Thanks for the reply Gold Lady. The solictitor said to send a grievance letter to the council to try and obtain a compromise agreement. In that they pay me my notice and an agreed reference. She stated I had to do this before filing for the tribunal

[Goldlady]

OK that is a good plan I think. Is the solicitor going to help you write this letter or write it for you? Compromise agreements seem to be the way to go at the moment from the point of view of both parties. Having been to several employment tribunals I know how much it costs the employer even if they don't have legal representation.

 

If you need help I might be able to lay my hands on the sort of letter you need.

[capt1964]

Solicitor as told me she can no longer represent me as the union will not pay. She stated that I should write the letter or employ another solicitor to write it for me. I have not got a clue were to start. Any help with format or ideas in regards to the letter gratefully received

[bed32]

I am a little surprised by the solicitor's advice. As you have followed the appeal process you can apply to the ET now for unfair dismissal. The grievance process does not normally apply to dismissal, but to other actions by your manager - e.g. treating you unfairly.

 

While I am not a expert I don't see that you have any claim other than for unfair dismissal and so I am not sure that a formal grievance is necessary. I suppose the solicitor may be thinking of a "injury to feelings" element in the unfair dismissal claim, but even there I am not sure that a grievance is necessary.

 

That said raising a grievance can do no harm.

 

Have you spoken to ACAS yet? They can sometimes give good advice. Citizens advice bureaux can also help sometimes but the quality of the advice from them is variable.

 

The direct approach to seek a compromise agreement would be to write directly to the council. The letter should be headed "Without Prejudice". In it you should say simply that you have taken legal advice and believe that you have a strong case for unfair dismissal. Say that in order to avoid the costs and delays associated with an ET claim you would like to discuss coming to a "compromise agreement". I don't see that such a letter can do any harm and it may well be that the council would be prepared to agree simply to avoid the hassle of an ET claim.

[hanzo]

Statutory grievance procedure does not apply to unfair dismissal. Unless there are other matters such as outstanding holiday pay etc. which require grievance procedure, your time limit for complaint to the tribunal remains 3 months.

[capt1964]

I am submitting the ET1 form on Monday, Will have to go it alone as the union solicitor has stated she only deems my chances of success as 50/50 so therefore the union will not assist with costs

[Goldlady]

In my experience of ET's the employer very often settles before the hearing, as really there is no certainty about which way the verdict will go. 50/50 is probably good enough odds for them to settle IMO. Best of luck:p

[capt1964]

Thanks Gold Lady

Ive now penned my grievance letter any advice would be appreciated see below

Without Prejudice

I have today submitted an appeal to the Employment Tribunal on advice from legal representation. They have read all the evidence produced throughout my disciplinary hearing and deem that I have a good case for unfair dismissal.

ACAS have also advised me that I should write a grievance letter to the Council, which my legal representative agrees with.

I have been informed me that I should request a meeting to discuss a compromise solution to avoid having to go to tribunal for the following reasons

1. I have nearly eight years service with the council with no disciplinary issues and prior to that 25 years exemplary service with the military having been awarded the Long Service and Good Conduct medal. I have not signed a non-disclosure agreement and I am now in a position were I can use evidence from previous hearing were I have been the Technical Officer. I do not wish to cause embarrassment to the council but would have to use this information in my defence for unfair dismissal.

2. My legal representative has informed me that this evidence of explicit pornography being stored and transmitted via email and piracy of music would not only be deemed as gross misconduct but also as being a criminal act. I have also been involved in incidents were senior members of staff have been identified as having password cracking software on their machines. The fact that these senior members of staff were not dismissed shows inconsistencies within the disciplinary procedure. The panel stated that my actions were not similar so therefore this has no relevance however a member of staff being accused of using password cracking tools for access to local machines is Gross Misconduct and is similar to any actions that I may have been accused of. In fact it would be deemed more serious

3. It has been accessed that f my email was removed from the council evidence that there would not have been a case to answer as irrespective that at least five members of ITC were involved in the collection of technical evidence no physical evidence has been produced showing access to band four questions. The data could not have been removed as data concerning band three questions was discovered. Removal of data from slack space is an all or nothing process, which your alleged technical expert should be aware of.

4. The appeal panel dismissed evidence from technical experts from Sophos and Microsoft but gave credence to evidence produced by their alleged technical expert who has NO Information Technology qualifications.

5. At the commencement of the appeal I was informed that Mr ***** was a witness and once he had given evidence would become part of the advice team for the appeal panel. However on the appeal letter he is named as part of the management team. Were the panel aware that they took technical advice off a person with no technical qualifications?

6. ACAS informed me that I should have been made aware of any witness’s that were being called by the management team. This did not happen

7. It is stated in the appeal letter that I was the Senior Desktop Analyst. This title does not exist and my job description and salary banding were as a Desktop Analyst. It was also stated that I was the IT Policeman once again this is not in my job description. It is stated that I had enhanced rights due to this role; my rights and permissions were the same as every other domain administrator. The IT Policeman should be the ITSO who should have the technical abilities to fulfil this role and not rely on a junior member of staff to carry out investigations against his peers

8. The information was deemed as sensitive by the panel however the ITSO believes it is acceptable for sensitive information to be stored on a laptop although the policy published by the council deemed that no information of a sensitive nature should be stored on a local drive. The ITSO stated that he was happy with the security protocols applied by the owner of the laptop, in fact there were no security protocols in ace on the laptop. The data was stored on the local drive without even a basic Microsoft Office password protecting this information deemed as sensitive. By the ITSO

9. I believe the disclosure of explicit pornography, Piracy, and illegal software being found on council’s computer assets will be a major embarrassment for the council. I have never admitted accessing band four questions and my legal advisor as stated that if this had originally been deemed as gross misconduct I would have been suspended when the allegation was made, I was only suspended after sending an email stating that I had seen a document relating to questions and answers. If I had not sent this email it is perceived that I would not have been suspended. The email itself shows my integrity and honesty as I was under no pressure from the investigating officer as I was still in work and not under suspension. All witness’s and myself had been interviewed prior to my sending an email whilst under strong prescribed drugs. My alleged actions it would appear were not deemed as gross misconduct until after I sent the email as I was allowed to continue in work after my interview. In nearly all cases of gross misconduct the person under investigation as been suspended after their initial interview as the majority of information is gathered prior to their interview, as was the case with this investigation. Subsequent evidence was only sourced in relation to my email. Albeit by mainly non-qualified personnel or junior members of staff.

10. In the appeal dismissal letter it quotes that I was a senior member of ITC. There were in fact thirty members of staff senior to me either by job title or salary. It is therefore a question from my legal advisor why I was given so much responsibility for administration of applications and software that were not in my job description. They also have contested the phrase that Anti Virus and Track it were my specific responsibilities yet there is no mention of either of these products in my job description nor have the council ever provided training for me to be able to support these specific tasks.

11. The panel stated that solutions given by international companies were not plausible both these companies have confirmed that not only are there resolutions plausible but in the case of Microsoft any certified exchange administrator would be aware of the functionality of “Hard Delete”. Due to legal requirements these companies are not in a position to give incorrect resolutions or advice.

I have been informed that the actions carried out by the Council could be deemed by the tribunal to be a breach of my contract. An employee should normally be given 1 week’s notice for every complete year of employment subject to a maximum of 12 weeks. I had seven years continuous employment and therefore would usually be entitled to 7 weeks notice pay. You will argue that I was given notice because I was dismissed for Gross Misconduct and therefore summary dismissal was warranted. However if I progress this matter to tribunal I will argue that I had been wrongfully as well as unfairly dismissed and if proven or agreed by the tribunal this would be in breach of my contract and by not paying my notice my former employer would have breached employment law and my contract.

I believe it would be in both parties best interests to agree a compromise agreement

[Goldlady]

Thanks Gold Lady

Ive now penned my grievance letter any advice would be appreciated see below

Without Prejudice

 

I have today submitted an appeal to the Employment Tribunal on advice from legal representation. They have read all the evidence produced throughout my disciplinary hearing and deem that I have a good case for unfair dismissal.

 

ACAS have also advised me that I should write a grievance letter to the Council, which my legal representative agrees with.

 

I have been informed me that I should request a meeting to discuss a compromise solution to avoid having to go to tribunal for the following reasons

 

1. I have nearly eight years service with the council with no disciplinary issues and prior to that 25 years exemplary service with the military having been awarded the Long Service and Good Conduct medal. I have not signed a non-disclosure agreement and I am now in a position where I can use evidence from previous hearings where I have been the Technical Officer. I do not wish to cause embarrassment to the council but would have to use this information in my defence for unfair dismissal.

2. My legal representative has informed me that this evidence of explicit pornography being stored and transmitted via email and piracy of music would not only be deemed as gross misconduct but also as being a criminal act. I have also been involved in incidents where senior members of staff have been identified as having password cracking software on their machines. The fact that these senior members of staff were not dismissed shows inconsistencies within the disciplinary procedure. The panel stated that my actions were not similar so therefore this has no relevance however a member of staff being accused of using password cracking tools for access to local machines is Gross Misconduct and is similar to any actions that I may have been accused of. In fact it would be deemed more serious

3. It has been accessed that if my email was removed from the council evidence that there would not have been a case to answer as, irrespective that, at least five members of ITC were involved in the collection of technical evidence and no physical evidence has been produced showing access to band four questions. The data could not have been removed as data concerning band three questions was discovered. Removal of data from slack space is an all or nothing process, which your alleged technical expert should be aware of.

4. The appeal panel dismissed evidence from technical experts from Sophos and Microsoft but gave credence to evidence produced by their alleged technical expert who has NO Information Technology qualifications.

5. At the commencement of the appeal I was informed that Mr ***** was a witness and once he had given evidence would become part of the advice team for the appeal panel. However on the appeal letter he is named as part of the management team. Were the panel aware that they took technical advice from a person with no technical qualifications?

6. ACAS informed me that I should have been made aware of any witnesses that were being called by the management team. This did not happen

7. It is stated in the appeal letter that I was the Senior Desktop Analyst. This title does not exist and my job description and salary banding were as a Desktop Analyst. It was also stated that I was the IT Policeman once again this is not in my job description. It is stated that I had enhanced rights due to this role; my rights and permissions were the same as every other domain administrator. The IT Policeman should be the ITSO who should have the technical abilities to fulfil this role and not rely on a junior member of staff to carry out investigations against his peers

8. The information was deemed as sensitive by the panel however the ITSO believes it is acceptable for sensitive information to be stored on a laptop although the policy published by the council deemed that no information of a sensitive nature should be stored on a local drive. The ITSO stated that he was happy with the security protocols applied by the owner of the laptop, in fact there were no security protocols in place on the laptop. The data was stored on the local drive without even a basic Microsoft Office password protecting this information deemed as sensitive. By the ITSO

9. I believe the disclosure of explicit pornography, Piracy, and illegal software being found on council’s computer assets will be a major embarrassment for the council. I have never admitted accessing band four questions and my legal advisor has stated that if this had originally been deemed as gross misconduct I would have been suspended when the allegation was made, I was only suspended after sending an email stating that I had seen a document relating to questions and answers. If I had not sent this email it is perceived that I would not have been suspended. The email itself shows my integrity and honesty as I was under no pressure from the investigating officer as I was still in work and not under suspension. All witnesses and myself had been interviewed prior to my sending an email whilst under strong prescribed drugs. My alleged actions it would appear were not deemed as gross misconduct until after I sent the email as I was allowed to continue in work after my interview. In nearly all cases of gross misconduct the person under investigation has been suspended after their initial interview as the majority of information is gathered prior to their interview, as was the case with this investigation. Subsequent evidence was only sourced in relation to my email. Albeit by mainly non-qualified personnel or junior members of staff.

10. In the appeal dismissal letter it quotes that I was a senior member of ITC. There were in fact thirty members of staff senior to me either by job title or salary. It is therefore a question from my legal advisor why I was given so much responsibility for administration of applications and software that were not in my job description. They also have contested the phrase that Anti Virus and Track it were my specific responsibilities yet there is no mention of either of these products in my job description nor have the council ever provided training for me to be able to support these specific tasks.

11. The panel stated that solutions given by international companies were not plausible; both these companies have confirmed that not only are their resolutions plausible but in the case of Microsoft any certified exchange administrator would be aware of the functionality of “Hard Delete”. Due to legal requirements these companies are not in a position to give incorrect resolutions or advice.

 

I have been informed that the actions carried out by the Council could be deemed by the tribunal to be a breach of my contract. An employee should normally be given 1 week’s notice for every complete year of employment subject to a maximum of 12 weeks. I had seven years continuous employment and therefore would usually be entitled to 7 weeks notice pay. You will argue that I was given notice because I was dismissed for Gross Misconduct and therefore summary dismissal was warranted. However if I progress this matter to tribunal I will argue that I had been wrongfully as well as unfairly dismissed and if proven or agreed by the tribunal this would be in breach of my contract and by not paying my notice my former employer would have breached employment law and my contract.

 

I believe it would be in both parties best interests to agree a compromise agreement

 

I have done the school teacher bit and made a few corrections:p It is a lot to say when the fury is coming out of your fingertips as you type:D. I think it sounds fine and I do hope you get somewhere with them.

[capt1964]

Thanks Goldlady submitted ET1 and sent letter nothing back yet

[Goldlady]

I am sure you will hear something soon:p

[capt1964]

Just got a reply from tribunal they have accepted my claim and put a cut off date for ACAS arbitration of 28/08/2008. I take it that this is normal

[capt1964]

Received letter from Council stating one line. We are not interested in a compromise agreement

[Goldlady]

Hiho Hiho it's off to the Tribunal we go.

 

Just stick to your guns. You have nothing to lose and may gain something. They are being particularly difficult but I suspect things may change in your favour:o

[Goldlady]

Just make sure you do everything asked by the Tribunal. It is more important from the employer's point of view but if you have fully complied with everything it will help your case.

[capt1964]

Thanks Gold Lady. Just opened my mail and Ive been offered a post with another local council. The wage is no were near what I was getting. But funny thing is it states that my references are fine and employment is only dependent on CRB clearance. Strange world

[Goldlady]

It would be very silly of them to give you a bad reference, at all but particularly now that they know you are not going to walk away with your tail between your legs. Are you going to take the job?

[capt1964]

I'm currently working as an IT Consultant as some one advised on this board the best way to get back into employment is through agency contracts. Will phone the new employer on Tuesday to find out start dates etc. Hopefully by the time of the tribunal I will be in full time employment.