misconduct/gross misconduct

[conncat]

Hi,

this might be a little long,

I am the union rep (I work in education) , since i became rep I was asked to rpresent a member in a gross misconduct case, to which the member got dismissed & we are awaiting appeal.

During this time I was as I can only descibe as being picked on by management, for every little thing but nothing substantial.

Then they said they were investigating me for misconduct due to non- attendance of a course, the course in question I had previously attended but had to miss the last couple of weeks due to bereavement, I asked to defer the course & was given permission to do this, When I re- attended the course I came to an arrangement with my tutor that the topics I had already covered I could use as study time.

I had an investigation hearing , to which I provided all relevant documentation to prove that I had attended the course.

That meeting was 5 weeks ago, & I was told the decision would be within 20days.I heard no more.

Today I have now been given another letter for gross misconduct, stating that I failed to finish a course that i attended 6 years ago, & therefore I am in a position at work that was according to the course.

I applied for the position whilst I was still attending the course, as it was advertised in the middle of my course.

This was 6 years ago & to be honest don't have much info or remember much information relating to this, as I have attended other courses since then.

Just wondering if anyone can give any advice

This has only happened since becoming a union rep.

conncat

[tezzah]

You should get the next level rep involved to help you, sounds a bit odd to me.

[PI Guy]

Very odd indeed. Start keeping a diary and consider a grievance. This is starting to sound like they want to get rid of you.

[conncat]

thanks for replying

Yeh they do want to get rid of me, they have even asked members of staff to monitor me without my knowledge, but the staff they have asked to do this have come and told me.

They lost my personnel file.

so many incidents, I have noted everything down.

As for the course 6 years ago I did complete the course, but they are saying I have given false information, but I have never submitted any false documents relating to the course, or a certificate, and surley, the course providers would've let my employers know when i had finished the course.

I hate that people are snooping around behind my back, & not upfront to ask me.

conncat

[Hobbie]

Agree, Keep a diary/log of everything, people who speak to you about this, dates/times, the subject of the conversation. No matter how unsuspicious it may seem.

[cal37]

Your employers are standing on very shaky ground. To do this sort of thing to a union rep can be looked upon as discrimination because of his/her duties as a rep and the company can find themselves in very hot water.

 

Get your area rep involved ASAP, put a grievance in and state in it that you believe you are being picked on because of your status as the union rep.Do this tomorrow do not delay !!!!

Believe me, after your area rep gets involved and the grievance hearing, this silly stuff will stop, as you do not have to prove the discrimination, just have to show it’s likely.

Edited June 4, 2008 by cal37

[conncat]

Thanks cal,

I have spoken to my area rep & we are meeting up tomorrow.

They havn't even acknowledged the original investigation that took place on 30th April & was supposed to be concluded in 20 days from that date, this I believe was because they knew it was a load of rubbish, but they should still have let me know the outcome.

So now they say this new investigation has come to light from the previous investigation.

Am I right that as they didn,t acknowledge the previous investigation within the time scale this shouldn't really uphold.

sorry hope that all makes sense.

[PI Guy]

Thanks cal,

I have spoken to my area rep & we are meeting up tomorrow.

They havn't even acknowledged the original investigation that took place on 30th April & was supposed to be concluded in 20 days from that date, this I believe was because they knew it was a load of rubbish, but they should still have let me know the outcome.

So now they say this new investigation has come to light from the previous investigation.

Am I right that as they didn,t acknowledge the previous investigation within the time scale this shouldn't really uphold.

sorry hope that all makes sense.

That will depend on the companies disciplinary procedures. read them carefully, your answers will be there.

[prushton]

Hi, I am a shop steward and I have just read your thread regarding misconduct / gross misconduct. Its clear that your company are victimising you , they seem to be on a fishing trip and are trying to get as much as they can to use against you in future disciplinary proceedings.

 

Firstly, check your contract of employment , especially the company,s disciplinary proceedures. These will set out the process to be followed in the event of disciplinary action. They will set out the time frame for initial investigations and will say how long before the company should get back to you regarding the outcome of the initial investigations.

 

I dont know what yours will say, but 20 days to get back to you and inform you of the outcome of the investigations is a hell of a long time, usually its within 7 days. Check you disciplinary proceedures and if they have not followed them, then submit a grievance straight away. This will help you should you end up in an industrial tribunal, any dismissal where the company has not followed the basic statutory disciplinary proceedures as laid out by ACAS will be ruled unfair and will result in the company paying you compensation at a level determined by the tribunal.

 

 

Your companys disciplinary procedures should set out the various levels of disciplinary sanctions ie verbal,1st written, final written etc and the circumstances that would warrant such sanctions including a few examples of what instances are regarded as misconduct / gross misconduct. They will usually say something along the lines of " This list is not exhaustive "

Typical instances usually regarded as gross misconduct are theft, mis-appropriation of company funds , making false expenses claimns etc all could lead to instant dismissal without notice.

 

The most important thing for you to know is : for something to be classed as gross misconduct it must be as a result of an intentional act ie you chose to make a false expenses claim , you took money from the works petty cash box etc.

 

The circumstances that you describe regarding your course are hardly an attempt to deceive or to misrepresent the facts. Surely the company were aware that you were not atending the course as a result of the bereavement, and you of course told the course tutor that you could not attend the course as a result of this bereavement.

 

One question springs to mind, did your employers at the time you were taken on know you hadnt completed the course? and did you complete the course prior to the commencement of your employment with them.

 

I f they did know or you notified them of the circumstances , then you have no case to answer. I would contact your nearest union offices and speak to a full time officer ( make an appointment to see one)and get him to take up your case. He can attend disciplinary meetings with you when dealing with the company and will be able to help enormously.

 

In the meantime, take a look at the ACAS web site WWW.ACAS.ORG.UK AND LOOK FOR LINKS TO ACAS DISCIPLINARY AND GRIEVANCE PROCEEDURES. They will tell you what the statutory minimium disciplinary & grievance proceedures your company should be following.

 

I hope you will find this helpful.

 

P.S keep notes of everything that has happened, will the people who have been asked to spy on you by your employers give a statement? all these things will help( if they do dismiss you) in an industrial tribunal. Lastly dont worry but get a full time union officer to help you a.s.a.p

Edited June 5, 2008 by prushton
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[conncat]

I applied for my current position whilst still on the course, so there was always a likely hood that I might fail, the job was advertised externley and intertney and I was an internal applicant, The management team was also different then. They offered me the job, as far as I was concerned I submitted what I needed to submitt to my course tutor and the course always kept my employers infomed throughout the course as to any iformation they needed about assessments. Basically that was it & 5 1/2 years later they throw this at me, also its hard to remember back 6/5 years I haven't even kept any info regarding the course as it was so long ago. I have never submitted any documents to my employer regarding the course or certificates, as for infomation on my application form at the time, I would most probably have put that I was attending the course. They gave me the post knowing I was still doing the course, I then went about my duties as per job description for the last 5 1/2 years, even though they have been digging me out over every thing.

hope that makes sense.

[prushton]

clearly, they were aware of the situation prior to the commencement of your employment. They are fishing for dirt, and if this is all they have found then they do not have much of a case.

 

I f you took this to a tribunal, they would see that they are picking on you, make sure that you take union representation with you to all disciplinary proceedings and make sure that minutes are taken and ask for a copy of those minutes ( you are entitled to a copy and they cannot refuse, but make sure you read them and agree to their content, both parties should then sign to say they agree the minutes)

 

This will be useful in the future. Also ask for a copy of your personnel file, you have a right to have one, this may help in providing evidence to support your case. good luck !

Edited June 5, 2008 by prushton
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[conncat]

I've been in with my union rep most of the day, & they are putting in a victimisation claim against them.

As for my personnel file, they said they lost it last year, so my rep has requested to see the file they have now.

They were fully aware that I was still attending the course, when I applied for the position, as I was already working there.

It was never said to me that the position was on the basis that I finish the course or pass, so I started the new position before finishing the course.

Also it was an entirely different management at that time.

So as far as I was concerned every thing was ok with them, but that was 5 1/2 years ago.

[prushton]

Great, looks like your reps on the ball, obtain a copy of your companys bullying and harassment policy if it has one and make sure that you follow the process exactly, you should submit a seperate grievance regarding victimization by this manager. Your rep will help you submit a grievance letter, it should clearly state that this is a grievance regarding victimization of yourself by this manager.

 

The beauty of this is that it has to be dealt with , you may request a meeting with your line manager to resolve this issue, if your line manager fails to deal with it to your satisfaction then you take it to the next level of management, believe me when the manager who is bullying you has to account for his actions to his boss , it will stop and will send a clear message to him that his behaviour is unacceptable.

Edited June 6, 2008 by prushton
edit

[conncat]

thanks for your great answers

just wondering, should my investigation meeting still go ahead?

also the hardest part is trying to get statements from other staff, as they are afraid it means they could be picked on, which is understandable.

The harrassment is actually coming from senior management it self (I work in a school).

[vonnie32]

I can empathise with your situation conncat - I was at the solicitors the other day about my own case and from what the solicitor told me this sounds like a case of bullying.

 

Hope it all gets resolved soon

Best wishes

Yvonne

[cal37]

Conncat, take advice from your full time rep only, he knows the case, he knows you and he knows your employers.

[conncat]

Thanks everyone for your valuable advice, meeting union rep tomorrow & member of management, general feelings are that this is harrassment.

[prushton]

Take a look at this, its advice from a professional HR company to companies about Bullying and harassment of employees by employees. It warns that a new case Majrowski v Guy’s and St Thomas’ NHS Trust which went to the house of lords and is now going to a full trial.

The house of lords has ruled that the Protection from Harassment Act 1997 (PHA), which was introduced primarily to combat stalkers, could be applied to harassment in the workplace. The key elements were :

Harassment and bullying: a new route for employees: Majrowski v Guy’s and St Thomas’ NHS Trust

 

Employers' Law13 September 2006 00:00This article first appeared in Employers' Law magazine. Subscribe online and save 20%.

This case hinged on whether the Protection from Harassment Act 1997 (PHA), which was introduced primarily to combat stalkers, could be applied to harassment in the workplace. The House of Lords has unanimously held that it could and that, more importantly, an employer can be vicariously liable under the PHA for harassment committed by an employee in the course of their employment.

Unfair treatment

Majrowski was unhappy with the way his manager treated him. He claimed that she bullied and intimidated him, was rude and abusive to him in front of other employees, was excessively critical and isolated him by refusing to talk to him. He felt that the treatment was because he was gay. The trust investigated and upheld his complaint of harassment. This all happened in 1998, some years before the Employment Equality (Sexual Orientation) Regulations 2003 came into force. He did not bring any proceedings against the trust at the time.

In 1999, Majrowski was dismissed from the trust (for unconnected reasons). Nearly four years later, in 2003, he brought a County Court claim against the trust (not against his manager) for distress and anxiety caused by the harassment. His case was that his manager was at all times acting in the course of her employment and, therefore, the trust was vicariously liable for the manager’s breach of the PHA.

The PHA prohibits a course of conduct (on at least two occasions) that amounts to harassment or which a person knows, or ought to know, amounts to harassment. Harassment is not defined, but includes “alarming [a] person or causing [a] person distress”. An employer can be vicariously liable for the acts of its staff where these occur “in the course of employment”. The courts have interpreted that phrase widely.

Vicarious liability

The question for the House of Lords in this case was whether an employer could be vicariously liable under the PHA. It confirmed that such a claim could be brought under the PHA. Majrowski’s claim is now going to a full trial to establish whether he was in fact harassed by his manager, as alleged, in the course of her employment.

Key points

• Harassment on any grounds is covered by the PHA – and does not need to be on a ground protected by the discrimination laws.
  
• There is no statutory defence available to employers under the PHA as there is for most discrimination claims.
  
• Claimants only have to show 'anxiety' or 'distress', which is a lower hurdle than making out a personal injury claim.
  
• Claimants have six years to bring a claim.
  

What you should do

• Deal with any allegations of harassment quickly and fairly. Ensure all staff understand the need to seek HR support when dealing with difficult members of staff, or when personality clashes start to develop.
  
• Ensure anti-harassment/bullying policies prohibit harassment/bullying on any grounds (and not just on grounds protected under the discrimination legislation).
  
• Ensure there is a good level of awareness among managers as to the broad definition of what can constitute harassment in the workplace, and that all staff are aware that any form of harassment (on whatever grounds) is unacceptable. Be clear about the penalties for anyone who engages in harassment.
  

so you see you could bring a claim against your employers using this act, the beauty of it is the burden of proof is lower, you only have to prove you suffered 'anxiety' or 'distress' as a result of your employers / managers actions , the other key part is the vicarious liability ie your manager was acting in his capacity as an employee while employed by your employer and therefore the employer can be held responsible for this managers actions.

[cal37]

You’re forgetting that trade union reps have protection in law under the Trade Union Reform and Employment Rights Act.

[prushton]

I am well aware, being a shop steward that we have protection from harassment under the act, I was only suggesting other ways to stop the harassment as my previous post shows.

[cal37]

I am well aware, being a shop steward that we have protection from harassment under the act, I was only suggesting other ways to stop the harassment as my previous post shows.

 

 

Indeed you were but the op does not need any other way to stop it, he should use the Trade Union Reform act in his/her case.

Edited June 12, 2008 by cal37

[conncat]

Thanks guys,well had the investigation meeting today, it was a joke, my area rep was with me, they were asking me questions about an interview that took place 6 years ago, they asked if the course in question was mentioned in the interview to which i replied that I couldn't even remember who was on the interview panel let alone what was said 6 years ago, My area rep asked what exactly are they investigating, to which they replied failure to complete a course. Yet this is not what they have put at the top of the notice they gave to me, yes they mentioned it in the letter but further down.

My rep also asked that it be noted she was going to the LEA & Governors, & also to the regional office as the union take it very seriously when one of their reps are being picked on.

They asked had I completed the course, I said as far as I was aware I had.

It's ridiculous asking me questions about 6 years ago, I just couldn't believe it, they are definitely scraping the barrel.

After the meeting my rep called a union meeting for all members , they have passed a motion of confidence in me

They voted unanimously to send a message to management of support for me & for management to leave me alone.

They also voted unanimously for management to follow the correct procedures.

sorry its so long hope it makes sense

[cal37]

Your area rep is taking all the right measures. Holding the union meeting was so she can judge how strong the member’s feelings are in this matter IF it should come to taking some industrial action at a last resort.

Your employers are taking a very dangerous course and your rep contacting the regional office is her moving it up the ladder within the union. I’m guessing the regional rep will now get involved and he/she will then get the union’s legal dept involved.

They are sending a very clear message to your employers, like a shot across the bow of a ship.

Take heart, you have the full support of your union and your members.

[L33noa]

Hi all,

 

Im in need of some advice, i have been dismissed for gross misconduct on 12th June and have my appeal hearing this tomo 25th June. i wish to pursue matter as far as i can as i believe that this is not gross misconduct. I will explain what happened, i sent a text message to my partner which somehowe accidently sent to my manager, this read........ U alright geek, what u upto? having lunch at 12 today if u wanna meet me, Babe i so need a new job new manager is such a Piers Morgan keeps havin a go at me about stupid things.

i was suspended on the spot and then received a letter next day inviting me to a disciplinary hearing for gross misconduct. i couldnt make the hearing as it was the next day at 8.30am and in another city, as i hav children i rang and said that i couldnt make the time and would need to rearrange, however i got a call at 5pm that evening saying the meeting would go ahead without me , this happened and i received a letter the next day advising i was dismissed! i feel that this shouldnt be classed as gross misconduct this was a private message expressing my views in what is a very stressful work environment, my manager has been constantly looking to drive me out of the workplace since she arrived and i did not intend to send the message it was a moment of frustration we all have at work when having a bad day/week.

please can anyone adivise if i can pursue the matter, the only prob is i have only been with the compnay for 10mths. I NEED HELP PLEASE GUYS!! PLEASE PLEASE WHAT CAN I DO????

[Sidewinder]

I fear that this may come too late - it would have been better to start a new thread which more people could have read and advised on, but here goes anyway...

 

You must feel awful - who hasn't sent an inappropriate text or e mail to the wrong person? I know that I have on a number of occasions but fortunately never quite so spectacularly as this!

 

Your problem, as you have already acknowledged, is that you have not been there sufficiently long to benefit from certain employment rights, not least to bring a claim for unfair dismissal (unless you feel that the company's actions are discriminatory). In that respect you will have a very tough job in overturning their decision. You have though not been afforded the correct procedure relating to disciplinary procedures. You should have been given the opportunity to have the meeting postponed, and only in exceptional circumstances should the meeting have been held in your absence. You should also have been made aware of exactly why your actions should be deemed Gross Misconduct. They might well argue that your text was offensive, but after all, you were only expressing an opinion.

 

Your only real chance is to claim that you were not dealt with in accordance with either the company's disciplinary rules (you would need to refer to your contract of company handbook to establish what these are) or the Statutory Minimum Procedures required by law. You may also argue that what you did, whilst reprehensible and foolish, was not a breach of the company's disciplinary rules and you feel that your treatment has been unduly harsh and disproportionate.

 

Good Luck, but I wouldn't hold my breath unfortunately.