Gross Misconduct Hearing advice needed asap

[Requsted]

Hello everyone,

my first time here and in need desperatly of some help.

 

Been with company for 8 months.

Called in today to be informed I need to attend a hearing for gross misconduct 48 hours later.

 

2 issues being: a. sick and b. being rude to a client

Both issues have mitigating circumstances. The sickness due to stress over many personal problems involving death, moving home, burgalary and money issues. they have supplied me with copy of dates.

Being rude to a client which no longer wants to work with me which means a high loss to the company if he decides to take his business elsewhere, is not true but as he has written a formal complaint it's being taken very seriously. I have been given acopy of this which was an email sent to my manager yesterday.

 

My questions are that if the company I am working for has encoraged the client to write this complaint that happened about month ago. I informed management that the client was not happy with me as I would not give him a manager's mobile number which is company policy and at the time the manager told me well done, so that they have a reason to sack me, do I have any defence?

 

If they simply wanna get rid of me could they?

 

I saw this coming as the manager has been giving me the cold shoulder for the last couple of weeks and has recently "expanded" by hiring someone that will have excatly the same position as me. In the past I have seen this happen to other employees, replacements hired then asked to come in to be dismissed.

 

I am certain they would like to 100% get rid of me, I don't want to stay but will like to at least work until I can find a new job.

[godpikachu]

ok, being as you have only been working there for 8 months, your employer does not have to give a reason for dismissal, it might seem unfair but unfortunatley thats the way it is.

however, as they are going through a disciplinary proceedure then this means that they are willing to be reasonable in some fashion, which could work in your favour.

 

ok, issue #1 = sickness.

 

provided your sickness abscences were covered by a sicknote from your doctors, they cant hold this against you, as this is classed as discrimination. if oyur doctor says you arent fit for work, then they have no right to attempt to force you to, or a right to hold it against you.

 

issue #2 = misconduct.

 

its your company policy NOT to give out your managers mobile number, so when asked for it by a customer, you were unable to give it.

you were following company policy in this matter, so therefore again, it cannot be held against you, if the customer didnt like this, then thats not your problem.

if the customer has sent an official written complaint in about this incident, then your company should be backing you up on this matter, you were following their rules, so the customer and the company has no right to pull you up on it.

if you had had given out your managers mobile number, then you would be facing a disciplinary hearing for doing that, so they are unfairly placing you in a no win situation.

 

from the sounds of it, the customer was looking to break off his business relationship with you anyway, and is using this as an excuse to do so.

the customer wont care about any consequences on you, they are simply wanting to take their business elsewhere, which they are allowed to do if they want, but your employers are obviusly upset at the potential loss of revenue and ar elooking to make a scapegoat should things go wrong, they have chosen you to take the fall.

[Requsted]

thank you so much for your advice.

 

But just to clear up a couple of things.

The company has already hired my replacement under the guise of expanding, but I have seen this happen to previous dimissed employees.

 

Also the client has not taken away his business but has said he is no longer able to deal with me. I strongly believe that the comapny has asked him for this complaint to be sent as this is how they have got rid of employee's in the past, through fabricated complaints.

 

I really do not know what to do in this situation as losing my job will seriously put me in a dangerous financial situation

[godpikachu]

thank you so much for your advice.

 

But just to clear up a couple of things.

The company has already hired my replacement under the guise of expanding, but I have seen this happen to previous dimissed employees.

 

should this go to employment tribunal this is irrelevant, if the company is expanding then they will need all the staff they can get their hands on.

if you successfully contest their charge of gross misconduct they will either have to give you your old job back or make a payout for lost earnings.

besides, they should not be hiring a direct replacement for you until the matter has been settled, if theyve made thier mind up without allowing you to mount a defence, then you have the right to appeal and the right to go to tribunal.

 

Also the client has not taken away his business but has said he is no longer able to deal with me. I strongly believe that the comapny has asked him for this complaint to be sent as this is how they have got rid of employee's in the past, through fabricated complaints.

 

I really do not know what to do in this situation as losing my job will seriously put me in a dangerous financial situation

 

if the customer doesnt want to deal with you any more, thats fine, they can always allocate the account to someone else and have you take over managing another account.

also, what is the customers reason for "not being able to deal with you"?, is this implicitly stated in their complaint letter?, have they since been offered a discount since your sacking?, if this is so, it will be worth pointing out at your hearing.

 

remember, you are ENTITLED to have a witness of your own choosing attend the hearing with you, be this a co-worker, a friend or a union rep, they cannot deny you this, if they do, it is a breach of your rights and thus again entitles you to an employment tribunal.

[Requsted]

The employing another person already to replace me, I cannot prove as if they do not rehire after getting rid of me, could be excusable, withthey were too busy to rehire or that they realised they no longer needed an extra person.

 

The client complained that I give very poor service, and that I seem disinterested in providing good customer relations, which he cannot prove but I cannot disprove.

 

The company has done everything straight down the line with askin if I want to be accompalied etc.

 

I guess I am just looking for any sort of hope that I won't be sacked for xmas. It would never be a good time but I can but hope.

Edited December 3, 2008 by Requsted

[Requsted]

anymore advice or help even to tell me I have no hope? Anyone?

[godpikachu]

The employing another person already to replace me, I cannot prove as if they do not rehire after getting rid of me, could be excusable, withthey were too busy to rehire or that they realised they no longer needed an extra person.

 

is the person they have hired doing "your" job?, if so, then youve been replaced.

 

The client complained that I give very poor service, and that I seem disinterested in providing good customer relations, which he cannot prove but I cannot disprove.

 

poor service in relation to what?, remember, 99% of customer complaints stem from their own expectations not being met, not from what the company/advisor is able to give. having worked in customer services numerous times, both as an advisor and as a supervisor, i am well aquainted with this phenomena.

might sound bad, but sometimes customers set unfeasably high expectations for a company they deal with, and also get this funny idea that its them that calls the shots.

while being provided a good service isnt an unreasonable expectation, you as advisor are only able to work within the limits and guidlines set to you by your employer, and this is what leads to customers making complaints.

[Requsted]

the person they have hired is replacing me as they have exactly the same job title and the hearing was only made when the person was hired.

[godpikachu]

theyve replaced you then, before you have had chance to defend yourself in a fair hearing, this probably means they have no intention of keeping you on = proceed direct to employment tribunal for unfair dismissal hearing + discrimination claim.

[Requsted]

The employing another person already to replace me, I cannot prove as if they do not rehire after getting rid of me, could be excusable, withthey were too busy to rehire or that they realised they no longer needed an extra person.

[elche]

Hi Requested

 

You had 8 months service - thus unless you can link this to one of the exemptions to the rule that you need 12 months service in order to claim Unfair Dismissal (no suggestion of this in the OP ** Edit unless your stress brought you within the protection of the DDA - unlikely), then you cannot bring a claim for unfair dismissal at an employment tribunal

 

Oh and the list of attendees you can ask to accompany you at a disciplinary hearing would not extend to friends, "Ss.10-15 of the Employment Relations Act 1999 introduce a new right for workers to be accompanied at a disciplinary or grievance hearing by a trade union representative or fellow worker"

 

Hope this helps

 

Che

[godpikachu]

ok, it doesnt matter about proof, expansion etc whatever, the sequence of events went like this...

 

they suspend you, pending enquiry -> they hire someone on a permenant basis to replace you -> you do not get chance to defend yourself in a fair hearing -> breach of employment regulations -> you get invited to attend a "hearing", which will from the sounds of it result in your dismissal -> employment tribunal for discrimination and unfair dismissal -> compensation.

 

 

on the surface, it appears that you could be in a fairly strong position, as they are using your illness combined with an unfair complaint as a reason for initiating gross misconduct proceedings.

just because they have got away with this before more than likely means that other people theyve pulled this on haent attempted to defend themselves, and have just meekly accepted the crap theyve been dealt.

 

remember, your employer isnt infallible, they can make mistakes and they probably dont realise theyve overstepped their mark on this one, theyre used to gettign their own way, dont let them.

[Requsted]

thanks any help, advice or comments is very gratefully accepted.

[Requsted]

GodPikachu, my hearing will be in a couple of days what do you suggest I do?

 

I was going to calmly defend myself explaining the mitigating circumstances to both allegations and appeal if the result is dismissal is this right?

Then during the appeal bring into account the new person being hired and repeating the previous defence. If they still dismiss me what would be my next step? Or am I going about this the wrong way?

[elche]

I still would argue that your length of service leaves you in a weak position

 

Your strongest argument, and very likely only argument, is that your stress brought you within the protection of the DDA and thus you do not need 12 months to bring this claim.

 

This link may help: CIPD - Stress at work

 

As for 'a breach of employment regulations' if this is a reference to a breach of statutory dismissal procedures, then this is not a free standing claim and can only be 'tabbed' on another claim e.g. discrim

 

The Employment Appeal Tribunal has ruled that the three step statutory dismissal procedure does not normally apply to employees with less than one year’s service because there is no stand alone right to make a claim for breach of the statutory procedure. Breach of the procedure is evidence of Unfair Dismissal and therefore one year’s service is needed for the procedures to bite. The only exception to this is where an employee is dismissed with notice during their first year and that notice takes them over the magic year.

 

I'm sorry unless you can link this to the discrim, with 8 months service, you have a very weak claim.

 

Regards

 

Che

[Requsted]

che, don't be sorry if that's what it is then that's what it is. I was just searching for maybe a loophole but would rather not claim stress due to work to sue the campany. I get paid so little I don't think it would be worth actually pursuing a claim, I'm just annoyed the way they have gone about everything, to let me go is one thing but to actually get me on gross misconduct is shameful!

[godpikachu]

id definatley at last push for unfair dismissal on the grounds of them using your sickness against you, and as far as i am aware they cannot hold sickness against you in any way, so long as your periods of absense are covered by a sicknote from your doctor.

 

i have first hand experience of this, as back in 2001 while working for royal mail, i had to have 4 weeks of sick due to a back injury sustained while at work.

i had a 4 week sicknote from my doctor, and in week 3 of my sick period the area manager rang me and requested i attend a disciplinary hearing.

a quick call to the CWU arranged for a union rep to be present at the meeting.

during the meeting the area manager stated that my sickness was unacceptable and thus should i not return to work on the following day, i would be dismissed.

at this point i had been working for royal mail for 4 months, and the union rep was quick to point out to him that should i be dismissed, i would be entitled to begin an employment tribunal for unfair dismissal, as i still had 9 days sick leave left to run from my sicknote, and should i require more, i was fully entitled to it, furthermore, as i sustaine dmy injury at work, i was already fully entitled to make a claim for personal injury.

the area manager left with his tail between his legs, as he was one of those "managers" who believed his sole job responsibility was to just go round sacking people.

it as the same area manager who a year later tried to get me sacked for an unsubstansiated charge of theft and gross misconduct (which i sucessfully defended after his so called "irrefuable photographic proof" was shown to be non existant, resulting in a payout for defamation of character and a written apology), and who after i had been made redundant ended up serving 2 years in prison for embezzlement.

[poppynurse]

id definatley at last push for unfair dismissal on the grounds of them using your sickness against you, and as far as i am aware they cannot hold sickness against you in any way, so long as your periods of absense are covered by a sicknote from your doctor.

 

I'm afraid an employer can fairly sack for sickness abscence - the company should have a sickness policy which explains this (ask for a copy urgently). A one off episode should not be a problem but if there are several episodes then the employer can legally go down the disciplinary route and dismiss and this can be held to be fair by the ET.

 

You need a copy of your company's disciplinary policy as well - it doesn't sound like gross misconduct to me (offences that class as GM should be listed in the policy). They may be trying to wing it as GM so they can dismiss and avoid giving a warning.

 

Unfair dismissal requires 12 months service before a claim can be raised at tribunal UNLESS there has been discrimination (disability, sex, race etc).

 

I would give ACAS a ring for expert advice on your situation.

[Requsted]

Seems like I'm pretty much fired! I will keep this thread updated after the hearing. Couldn' sleep last night, and have not eaten since I got suspended. I just hate that people get into this situation and can do nothing about it.

[p_cas]

It always amazes me that people give advice on here that is plainly wrong. There is no law that stops you being dismissed when off sick or because of sickness. In fact it's a very common clause in employment contracts and perfectly legal when properly applied.

 

Also, as said by elche, you dont really have a leg to stand on until youve been employed continuously for 12 months or more. It would only matter if they had employed someone in your role if you were being made redundant, which isnt the case here.

 

From what youve said you dont have a case for unfair dismissal and, to be honest, they could have terminated your contract without even giving you a reason.

[Requsted]

terminating without reason is surely better and more human then pushing me out on gross misconduct?

[Requsted]

anyone???????

[godpikachu]

im saying nothing more because despite first hand experience in a matter like this im obviously some sort of idiot.

[Requsted]

godpikachu, I appreciate all the time you have taken to post so many replies as it just keeps me sane and it's really good to find someone like you that tries to help me, just shows that somebody in the world is listening to me and trying to help while all my world is falling apart and I feel so so low. please do not stop adding ideas and suggestions or anything. Thank you

[poppynurse]

godpicachu - first hand experience is always valuable and support is very welcome but the whole point of a forum is that folk can give a range of responses and correct any misperceptions. Employment law is very tricky and surely it is better that corrections are made if advice is incorrect? It doesn't make you an idiot - please don't take offence.

 

Requsted - let us know how it goes.

 

Best wishes.