Really Gross Misconduct?

[khasar]

Firstly I must say that I am already a member with this great community however due to a forgotten password and frozen email account at work (which will be explained later) I am starting afresh with this issue...

 

Will try and be concise with the details and apologies in advance for the rambling:

 

Returned from holiday to receive a letter from my employer stating I had been suspended from work pending disciplinary investigations, a complete bolt out of the blue to me.

 

I am a graphic designer and the allegation lies in that I have been carrying out work for other parties on work equipment during office hours. While I was away my emails have been studdied and printed out along with any offending material that has been found on the system at work as evidnce against me. None of the work I have done during office hours have been for financial gain, They range from birthday cards, business card for friends to a logo for a friends sandblasted glass wedding gift etc. In one email it does mention money and that is payment from a friend of just £100 as a token gesture after completing in excess of 50 hours work from home.

 

During my working week I never have lunch breaks and will put in an average of 1.5 hours extra time daily. My work ethic has never been brought into question and also the high standard of my results. Often I will work at home in the evenings in order to ensure that tight deadlines are met with my usual high standards. I have also been known to upload artworks etc during weekends as there have not been enough hours in the previous week. Also 6 months ago I shattered my thumb and could have been signed off by the doctor for 2 weeks instantly. I take my employment seriously and apart from xrays and physio I did not miss one day. I’m not saying I am any kind of hero it’s just all part of how I am as an employee as any of my colleages would vouch and this whole issue just seems so unjust.

 

The evidence I have been presented with shows times and dates etc where I have worked on non business related material and never do the times exceed 40 minutes between start and completion within a day. Also I might add that I work on huge layered files in excess of 2gb and they can often take approximately 15 minutes to save or open. Of course I could sit and watch the screen blankly waiting or get on facebook like the rest of the world but does spending the ocasional moment designing for a friend really constitute gross misconduct?

 

I have worked with this company for 18 months and have done exactly the same with previous employers which has never been an issue. I am very computer savvy. If I thought for one minute that what I was doing constituted gross misconduct I would have at least have had the sense to keep everything on an external drive or zip it up with password encrpytion. of course I also would never have used my work email. In hindsight maybe I have been naiive in assuming that my work ethic and the sheer quality and quantity of work I produce would never give my employers any reason to question my integrity. However this is obviously not the case.

 

This really has come as a severe kick in the teeth and he possibility of losing my job in this climate has devastating effects. At least I am now sleeping again and really want to fight back... My hearing is on Tuesday 14th October and if anyone could offer any help or advice it would be much appreciated.

 

PS.. In my contract it does state that email and internet can be used for personal use at lunchtimes and before and after work hours so from a black and white legal point of view I am in breach of contract? In reality I have far too much work to complete to schedule a lunchbreak and any breaks are dictated by clients deadlines. Also, it’s a small company and the person I would need to appeal to is actually my line manager, director and person making the allegations... what chance do I have for justice?

 

Any help would be really appreciated, obviously a lot hangs on this not least of all my own reputation. Thanks in advance people.

 

PPS.. Not sure if this is really relevant but the company are happy to use work I have done previously with other employers to pitch for new work for themselves. Of course I have been happy for this to happen as if it benefits the company it benefits the employers. Likewise I would always be happy to use any of my designs for future new business meetings. In retrospect it stinks of take but no give. I will now shut up before I start to get bitter!

[car2403]

I, personally, don't think this is gross misconduct. Misconduct it may be, but I don't think you are in danger of losing your job.

 

As an employer myself, I know they have to do everything by the book. Does your contract now allow some sort of investigation, prior to the disciplinary action? I assume this is why they have suspended you. (I'm assuming you are still on full pay at this stage?)

 

I think you know what you are doing is wrong, but, if you give your employer the information you've stated on this thread, I'm sure you'll be fine. You may get a warning that what you've been doing is wrong and they will monitor you, but I can't see anything more than that. After 6 months, it shouldn't even appear on your file.

 

What you need to do is get across how good an employee you are and that - if you have been involved in misconduct - it wasn't because you had malious intent against the company. Also, recognising what you have been doing is wrong would probably go a long way, IMHO.

[khasar]

Thanks Chris

 

After further investigation and a very close look at the times and dates of the allegations I have discovered that I have not been working on anything considered non work material for more than 30 minutes in any one day. I am very sure that my boss will agree that it is impossible for me to have any set lunch break as client deadlines always take precedence. And also, as previously stated most days it is impossible to take an actual lunch break at all due to the amount of urgent projects.

 

So with this in mind surely it would be impossible to consider what I have done to be anything more than a breach of contract. The fact that my contract allows personal use of internet and email before and after work and also during lunch breaks in a way negates any wrong doing? If the nature of the work does not allow me to have lunch breaks then would it be considered acceptable for me to spread this hour throughout the day for personal use as long as this does not impact on my employment?

 

With hindsight, I admit I have made a mistake but can honestly say there was certainly no malicious intent at all and the quality and quantity of the work speaks for itself.

 

Hopefully I will not lose my job over this but it may be impossible to stay long term after this treatment. If I did get the boot do you think I would have any chance in an industrial tribunal?

 

Thanks again...

[Nemesis_Drake]

Time to leave....I'd sack you in the morning. As far as the tribunal goes...who cares! You win you get your back pay...you lose...you get nothing. As an example employee takes phone call on company phone which I pay the bill for...mention of parts needed and discussion of labour charge......then discovery that it's a personal call....Sacked.

 

I don't pay people to be in competition with me!

[callumsgran]

I'm so glad i dont work for you

[car2403]

Time to leave....I'd sack you in the morning. As far as the tribunal goes...who cares! You win you get your back pay...you lose...you get nothing. As an example employee takes phone call on company phone which I pay the bill for...mention of parts needed and discussion of labour charge......then discovery that it's a personal call....Sacked.

 

I don't pay people to be in competition with me!

 

How are you paying for the call if they "take" a phone call - surely you'd only pay if they made a phone call on your phone?

 

[Nemesis_Drake]

You have to think it through a little further.....My Phone My vehicle My time...Travelling for the parts in My vehicle while I pay them and then travelling out to fit the parts and charging their "customer" = I may as well employ the competition...Probably they'd be more conscientious...Or even conscious!... For those who don't understand business.....It's the equivalent of paying the window cleaner to clean your neighbours house windows.

[khasar]

Interesting comments Mr Drake. And I agree, It certainly is time to leave regardless of the hearing tomorrow.

 

I am guessing your staff aren't allowed breaks and I am glad I will not be looking to you for legal advice.

 

It's nothing to do with understanding business. It's about understanding man management and they are totally different beasts. I won't labour the point as it's of no use to me and not why I am here but good luck in getting the best out of your staff with your pointy stick...

[Nemesis_Drake]

Best of luck khasar..I mean that, My advice is bite your tongue in the preliminary meeting and if invited to attend a formal disciplinary meeting take a union rep in with you. Then after receiving your final written warning....Look for a job (always easier to look from a position of employment) at an "honest" company, By which I mean somewhere with the balls to just dismiss on the spot rather than going the route of mentally torturing the employee into leaving as "they can't take it any more" I gave up being an employee many moons ago after issues such as you're having now..........."I want rid of X as I dont get on with him/her...How can I push him/her through the door" Check the staff turnover at your next job too!

 

 

If you aren't in a union see what the CAB can do to help, Remember to be honest too....that way you get to be self righteous and indignant

[patdavies]

My guess is that this has nothing to do with either email or web use (for information, email is a part of the internet,as the the WWW), it's about doing 'work on the side' using the employer's equipment (and probably materials).

 

I am a graphic designer and the allegation lies in that I have been carrying out work for other parties on work equipment during office hours. While I was away my emails have been studdied and printed out along with any offending material that has been found on the system at work as evidnce against me. None of the work I have done during office hours have been for financial gain, They range from birthday cards, business card for friends to a logo for a friends sandblasted glass wedding gift etc. In one email it does mention money and that is payment from a friend of just £100 as a token gesture after completing in excess of 50 hours work from home.

By your own admission, you have even taken payment for it - although you call it a token.

 

The fact that you choose to work through your lunch break is a personal choice and does not entitle you to recompense. Especially not by use of the employer's equipment/materials - that is actually theft. In theory, you have made a financial gain - by not having to pay out for the equipment or materials; you are actually working in competition with your employer!

 

I suggest that you will be lucky to keep your job, and if you do, you will be on a final written warning.

 

Lastly, you should be aware that any emails using the company's systems become the company's property, to do with as they wish. They are perfectly within their rights to both read and print them

[khasar]

Firstly this is not in competition with my employer as it is a completely different sector and much smaller business than my company would ever undertake.

 

secondly it is certainly not my choice to work through a lunch break. If I receive a brief at 12 with a 3 hour deadline I can hardly take an hours break in the middle and apologise to the client saying I missed the print slot due to feeling a little peckish.

 

I will, and always have given my work 100% commitment when required regardless of time of day, night or levels of hunger. Everything else has to fit in around this...

 

But I appreciate the comments and how things seem from a devils advocate point of view...

[callumsgran]

Best of luck khasar, with everything

[khasar]

Thanks very much... I will certainly be posting the outcome.

[Donk28]

Hi Khasar

 

In my opinion (I'm not a solicitor, but I'm an employer myself for a major PLC in the Recruitment Industry) your employer has definatley got a case for gross misconduct, given that you were providing services that could reasonable be deemed to be in direct competition with your employer, using company facilities on company time.

 

Personally, I believe that it's harsh given what you have said about your work ethic and if you worked for me, I'd exercise some discression here, but if they want to dismiss you they could.

 

Just make sure they follow proper process, giving you an opportunity to defend yourself and offer any extenuating circumstances.

 

Best of Luck

[khasar]

Well after much deliberating and talking I have not been dismissed. I keep my job as normal but have been given a final written warning that will stay on my record for 12 months...

 

I certainly won't be making the same mistake again so hopefully everything will now be fine. However, it is a bit unnerving having a final written warning hanging over me for a year. Is this normal or legal? It is certainly not mentioned within my contract?

[MrShed]

Perfectly standard khaser.

 

I would say I good result under the circumstances.

[car2403]

I certainly won't be making the same mistake again so hopefully everything will now be fine. However, it is a bit unnerving having a final written warning hanging over me for a year. Is this normal or legal? It is certainly not mentioned within my contract?

 

A final written warning is meant to be unnerving...

 

If it isn't contained within your contract, the contract should refer to a disciplinary procedure or policy in which it should be mentioned. But then, do you really want to start querying that - I'd be happy with the result and move on. Just make sure you keep your nose clean from now on. (We'll at least until November 2009)

[Mossycat]

Jeez Khasar, what a horrible position to be in, I'm glad you didn't lose your job but I think it's time you got another somewhere else.

 

Patdavies was right, you technically stole from your employer when you used their equipment for personal use, but I cannot think of anyone who doesn't (the odd pen, a post it pad, paper clips, the odd envelope, blank floppy disk or blank cd etc etc).

 

In your circumstances now I would be tempted to do everything 'by the book', start on time, finish on time, take your full entitlement to lunch and breaks etc and never do unpaid work for your Company at home.

 

Employment (IMO) goes beyond what is written in black and white, it's a two way street of give and take. Any decent employer would have looked at this and what you have done (and given) to the Company and your standard of work and at worst should have told you not to do it again, at best would have ignored it.

 

I know I am lucky to work where I do because our Manager has over the years overlooked lots of minor wrongs (personal phone calls, nipping out for 20 minutes, the odd afternnon off when it's a family event etc), he even introduced an extra 15 minutes to the lunch hour on a Friday (totally unofficial), but it allows people to get their shopping done and still have time for a sandwich. In times of Comapny need (ie when we are swamped out etc), not one person complains about staying late, working a lunch hour, coming in early etc. Result is we feel appreciated and know we get things we are not entitled to but then again we appreciate the Company (well OK the Manager) and we do things for the Company that they are not entitled to force us to do.

 

Good luck job hunting

 

Mossy

[MrShed]

My company is very much the same as yours Mossy - less dictation results in higher morale and more willingness to put the time in.

[Mossycat]

My company is very much the same as yours Mossy - less dictation results in higher morale and more willingness to put the time in.

 

Yeah but you won't be taking 'smoke-breaks' now will you!!!!

 

Good luck with it

 

Mossy

[callumsgran]

Yeah but you won't be taking 'smoke-breaks' now will you!!!!

 

Good luck with it

 

Mossy

Not unless he drinks at work lol !!!!

[Nemesis_Drake]

Well after much deliberating and talking I have not been dismissed. I keep my job as normal but have been given a final written warning that will stay on my record for 12 months...

 

I certainly won't be making the same mistake again so hopefully everything will now be fine. However, it is a bit unnerving having a final written warning hanging over me for a year. Is this normal or legal? It is certainly not mentioned within my contract?

A good result for you!

 

Will it stay on your record "and" be in effect for 12mths or just on your record?

 

It's an entirely normal thing for a final written warning to be given (usually for gross misconduct when it's the only alternative to dismissal) as stated earlier it will be in the company handbook (I'm assuming they are large enough a concern to have one) Don't worry about it...and if you feel strongly enough about it in the coming months "vote with your feet"

 

All the best and join a union.

[car2403]

join a union.

 

I really don't believe in Unions, personally. All they can do is ensure the fair and proper process is followed in individual cases - if you're switched on enough, you can do that yourself if you're prepared to prepare and research your own case. In fact, I've been in disciplinaries where the Union has gone against the interests of the individual member because they don't want to "rock the boat" with the company!

 

I've had my job offshored to India on several different occassions leaving me out of work and redundant - the Union... completely powerless to stop it and completely futile in trying to "support" me through it.

 

At my current place of work, the Union has all but completely upset everyone that I manage - some 100 people - because we (the company) wanted to pay them more money for what they do. (Long story!) The upshot of it is that everyone else (the other 100 people who work in my organisation unit) now get paid more money than than they should and my staff (including me!) are left with a £200 payrise. All this because the Union "fought" for the rights of the majority, of which I and my staff weren't part of. Some of these other staff are getting £2k/£3k increases in the meantime. When we asked what is the incentive to agree, all the Union could do was to promise to continue negotiations and try to get the company back to the table.

 

The word "Union" is a like a slap in the face to me right now. How have I benefitted by paying my subs every month, exactly?

 

Rant over.

[Nemesis_Drake]

I really don't believe in Unions, personally. All they can do is ensure the fair and proper process is followed in individual cases - if you're switched on enough, you can do that yourself if you're prepared to prepare and research your own case. In fact, I've been in disciplinaries where the Union has gone against the interests of the individual member because they don't want to "rock the boat" with the company!

 

I've had my job offshored to India on several different occassions leaving me out of work and redundant - the Union... completely powerless to stop it and completely futile in trying to "support" me through it.

 

At my current place of work, the Union has all but completely upset everyone that I manage - some 100 people - because we (the company) wanted to pay them more money for what they do. (Long story!) The upshot of it is that everyone else (the other 100 people who work in my organisation unit) now get paid more money than than they should and my staff (including me!) are left with a £200 payrise. All this because the Union "fought" for the rights of the majority, of which I and my staff weren't part of. Some of these other staff are getting £2k/£3k increases in the meantime. When we asked what is the incentive to agree, all the Union could do was to promise to continue negotiations and try to get the company back to the table.

 

The word "Union" is a like a slap in the face to me right now. How have I benefitted by paying my subs every month, exactly?

 

Rant over.

 

So in summary you weren't in the union and now all the union members get £2-3k more than you?

 

Sounds like a good result!!

[MrShed]

You've misread Nemesis - it would appear that the OPPOSITE is true, and that union members, due to their objection, have no pay increase whilst non union members who did not object have a pay increase.