gross misconduct appeal on thurs the 13th please HELP advice needed

[phil9]

Hi l wonder if anybody can give me advice on gross misconduct l have been dismissed and have got a appeal on thurs 13th aug l was on a final written for sick for six months still had about 3 months to go but was seen smoking shelter 6 mins before lunch thinking it was my lunch or near as. they say this is gross misconduct in there eyes breach of rules.It is gross misconduct to smoke outside of break and was dismissed appealing on thurs. In my appeal letter l stated l thought i was break and some of the clocks read different in factory anyway. And have been there 10 years. There were other people 2 mins before there break aswell but they just got a verbal warning.this happened on the 22nd of july and they didnt dismiss till the 3rd august l went to Citizens advice and they think l should have been suspended if they consider it that serious but there were 13 days before l got dismissed l also said l feel this is discriminated against as there were others there aswell. what do l say as l have not got myself a union rep. please any advice!!

[mariefab]

Before we get to what to say at the appeal meeting could you please just clarify:

1. After the smoking incident on the 22nd July, did you carry on working for the rest of the day?

2. Did you continue working your normal days/shifts from the 22nd to the 3rd August?

3. Did you attend a disciplinary meeting where you were given an opportunity to defend yourself?

If so;

a) When.

b) Were you told before this meeting that the incident was regarded as Gross Misconduct or at least warned that it was considered very serious?

c) Were you informed that you had the right to be accompanied by a work colleague or union rep?

4. Have you been given the reason for your dismissal in writing?

[phil9]

Hi thanks for replying

1.yes l did carry on working for the rest of the day.

2.yes l did carry on working from the 22nd of July till Aug 3rd

3 yes l did go to a meeting after lunch asking me if l had been smoking.He said answer the questions very carefully as if it was serious l said l thought it was lunch break. they said they had three people who had seen me at 23 min past when it was break at 12.30 and it was on CCTV and l asked lf this was going to discipline me he said hed look into it.

l then got a letter on Mon the 27th July asking me to go to a disciplinary on the 3rd of Aug saying l was in breech of the smoking policy which can lead to summary dismissal for gross misconduct and l can be accompanied by a union rep or a work colleague.

On the 3rd l went to the hearing and said l thought it was break and it was not intentional.

They said didnt l think it was strange that there was nobody there when l went out. l said a few minutes later two others came out so thought l had done nothing wrong.

I mentioned about the clocks being different in various parts of the factory which they are.

The outcome of that hearing was a breech of the smoking policy outside of break and l was dismissed for gross misconduct which they have given to me in writing.

In my appeal letter l said l find this unfair and harsh and feel discriminated as there were others they on CCTV aswell. And have seeked legal advice which l did.

Trying to think of right things to say at the appeal. like arent supposed to suspend me if my actions are that bad.

Any advice please? all this over 6 mins!!!

[bazak1]

Hi Phil9,

have a look on the acas website www.acas.org.uk

There is good info on there which you may find useful.

To be honest it does seem harsh, but having said that i dont have knowledge of your workplace or its rules.

I take it you have a contract, and if so, have a look to see what it states regarding your problem.

[phil9]

cheers bazak1 will have a look on there.

It does say in the smoking policy at my workplace it is gross misconduct. But how far do you go?

[mariefab]

OK a couple more questions:

1. After the hearing on 3rd August did you have to leave immediately?

If not what happened.

2. Do you know what is happening about your pay?

I mean will you be paid to 3rd August (plus any holiday entitlement due).

Or, will they pay you for the rest of the week or is there any other arrangement in relation to your pay that you are aware of?

 

bazak makes a good point

Does it say in your contract that breeching the smoking policy may be considered to be Gross Misconduct?

If not, ask for a copy of the company handbook and check there.

 

If you don't already have them you should ask for copies of all notes that the company have in relation to both the investigation and the disciplinary hearing. Tell them that you need them to help you prepare for your appeal.

Do this by phone first thing on Monday and offer to come and collect them.

If they refuse to provide the notes send a letter asking for them again. Send it by special delivery, so that you can prove that that received it the next day.

 

Appeal Meeting

If you are on good terms with either of the people who had verbal warnings for that day I suggest you ask one of them to accompany you to the appeal to take notes for you.

Whether you choose one of the above people or if you prefer to be accompanied by another work colleague you need to get in touch with your employer as soon as possible to request that you may be accompanied by the person you select.

Your employer should not refuse your reasonable request.

 

If the smoking policy does not specify that a breech of it may be considered Gross Misconduct then this is your first line of defence at the meeting.

 

Next, you should ask them if they agree that there are small variations in the time shown on the clocks in different parts of the factory.

If the person holding the meeting says that they are unaware of this then ask everyone else in the room the same question.

 

I assume that in the written reason for dismissal that you have been given that is does not specify '6 minutes'.

Ask why other people who committed the same offence were merely given verbal warnings.

Surely, if a breech of the smoking policy = Gross Misconduct, all of you should have been sacked.

[mariefab]

I type slowly so I didn't see your post #5.

 

But still an employer has an obligation to be fair and consistent in all disciplinary actions, especially with dismissal, and if it's a verbal warning for the other two then surely you should receive the same.

[phil9]

hi mariefab that is my line of defence why lm being sacked for gross misconduct and the other two got a verbal

[mariefab]

Another question:

In the 10 years that you worked there do you know if anyone else has ever been dismissed for breeching the smoking policy?

[mariefab]

Can you answer questions 1 & 2 in my post #6 please.

[phil9]

yes l left start away on the 3rd

and lm payed upto the 3rd and that is it

[phil9]

sorry straight

[phil9]

and yes people have been caught but not sacked someone was caught on the shop floor but stayed

[mariefab]

OK

The thing do now is to chase up their notes the way I described in post #6.

Come back on Monday and let us know how you get on.

 

Keep checking here, in the meantime, as there are employment specialist that hang around these parts.

 

If you like I could prepare a statement for you to take to the appeal meeting that you could hand over, use to refer to or both.

[mariefab]

and yes people have been caught but not sacked someone was caught on the shop floor but stayed

 

Excellent:D

[phil9]

yes something to refer would be good. lm only a engineer l don't normally have to do this sort of things cheers for your help and will keep an eye on the forum thanks

[phil9]

have now got a in contact with a solicitor and going to see him on wednesday

Edited August 10, 2009 by phil9