Suspended pending investigation thats already happened ?

[majik]

From everything you have posted here the Company would need to be suffering from some form of mass insanity to dismiss you for allegation 4.

Not least because you have that letter from the CEO.

 

So, I return to my earlier concern regarding the statement on the appeal letter that they 'upheld allegation 1'.

 

My understanding is that the purpose of an appeal hearing is to decide whether or not to uphold the original dismissal.

Perhaps they have upheld the decision to dismiss based on allegation 1.

 

I sincerely hope that I am wrong, but could you take another look at the appeal letter to see if it's possible that it is so ambiguously phrased that you might have misunderstood it?

 

Apologies i believe i have made an error and got the responses for allegation 1 + 2 mixed up.

 

Response to allegation 1 is Having investigated this point at length I have been unable to find sufficient evidence that you did gain Time Off In Leiu through the falsification of the time sheets. It is not mentioned whether this has been upheld in the companies favour or mine. allegation 2-4 all have there own paragrahs at the end of the letter but there is no mention of allegation 1. I can only assume that as it is stated that no gain can be found it cannot be classed as deiberate aso therefore cannot be classed as Gross Misconduct. I will seek clarification on this matter from the CEO.Response to allegation 2 is Therefore, I uphold your appeal on this point

I hope that helps calrify matters further.

[mariefab]

allegation 2-4 all have there own paragrahs at the end of the letter but there is no mention of allegation 1. I can only assume that as it is stated that no gain can be found it cannot be classed as deiberate aso therefore cannot be classed as Gross Misconduct.

 

I hope that you are right.

 

So, A2- they uphold your appeal, A3- inconclusive.

 

In the appeal letter, do they make it clear in A4's paragraph that this is the reason for dismissing you?

[majik]

Allegation 3 -Regarding the use of the company internet during work’s time, there is no doubt that you did use the internet to search for employment; however, our system cannot prove the times at which you did this. I note you have stated that you did this in your lunch break and I accept that this could be so in the circumstances

 

Allegation 4 - I have reasonable belief that you did seriously breach security and confidentiality by providing the access code to your partner which he subsequently used to access the premises. I can find no evidence whatsoever to support your claim that other staff member provided the code to your partner and therefore cannot uphold your appeal on this point.

I would like to point out that at no point have i said my partner got the code from the other employee i have just stated that he didnt get it from me and handed over a copy of my partners witness statement.

The points in red are what i feel to be very relevant - to date i have not been released the CCTV my partner requested which he states should prove hes innocent in additon to the letter and also it is just the CEO's belief that i was wrong. Nothing has been provided as evidence i was wrong or that they were right so how can i defend this at ET ?

[mariefab]

Well, you are definitely correct that the 'reasonable belief' quote is very relevant. The Company has obviously been advised that they don't have to prove your guilt and that a 'reasonable belief' is enough to satisfy an Employment Tribunal.

 

However, your second 'no evidence' quote is equally relevant. If the CCTV evidence still exists it should prove your innocence.

So, as they are claiming that they can find no evidence that a staff member provided the code to your partner, this suggests that either the CCTV does not show this (perhaps the camera didn't cover the area concerned) or that the CCTV evidence does not exist (wasn't recording that day or was accidentally erased).

 

I'd suggest that your OH chase up that CCTV evidence soonest.

[majik]

He originally requested it via a SAR and the company believed that as they issued the letter retracting there comments it wasn't needed, they have been infromed that it is still needed, CCTV was working as there are 4 screens customers facing so my partner could see it was recording.

 

I will get him to chase it up again today and also to request clarification on allegation 1 as there is no final outcome as such other than they can find no evidence to prove the allegation.

 

Surely they have not provided any evidence so have not allowed me a fair attempt to defend myself in relation to this allegation.

 

Have they proved reasonable doubt though, as i earlier stated my OH went into the store and spoke for 4 minutes to the staff member on site before going using the code, he wouldn't have done that if he was doing wrong and he also wouldn't have returned to sign back out after afterwards if he had done wrong.

 

If his intentions were bad he would not have obtained the photos during office hours he would have gone when he knew no one would be there.

Edited December 11, 2009 by majik

[mikeyboy197663]

Hi,

 

Im slightly confused ?

 

In your post timed 00.59 you stated: "First instance in the morning when the code was used there was a 4 minute conversation with the female staff member very pleasant etc when he was given the code"

 

But then in your post timed 05.25 "

I would like to point out that at no point have i said my partner got the code from the other employee i have just stated that he didnt get it from me and handed over a copy of my partners witness statement"

 

was the code given to your other half by the member of staff or by you ?

 

sorry to question it, but they will question you on this in an ET.

 

Regards

[majik]

Hi,

 

Im slightly confused ?

 

In your post timed 00.59 you stated: "First instance in the morning when the code was used there was a 4 minute conversation with the female staff member very pleasant etc when he was given the code"

Yes this is correct, this is in my OH's witness statement i have never said my OH got the code from the female at work my OH witness statement says it however the wording used in the appeal letter clearly states that i have said my OH got the code from the female staff member, this is incorrect. Possibly me being pedantic over wording etc.

 

But then in your post timed 05.25 "

I would like to point out that at no point have i said my partner got the code from the other employee i have just stated that he didnt get it from me and handed over a copy of my partners witness statement"

 

was the code given to your other half by the member of staff or by you ?

 

I have not at any point released my code to anyone.

sorry to question it, but they will question you on this in an ET.

 

Regards

 

Please see my comments in red, i hope this helps clarify the issue. apologises for it not being clear first time round. Possibly me looking to much into the issue but i feel it is incorrectly worded.

[mikeyboy197663]

Hi,

 

Can you please just clarify, what is the allegations that they have sacked you for ?

 

Has it been made clear as to what allegation they are basing this all on ?

 

Regards

[majik]

The appeal to my dismissal leter does not make it clear, i have requested confirmation on alleagtion 1 and allegation 3 and it does not state weather my appeal has been upheld or that the companies decision has been upheld, Alleagtion 2 and allegation 4 it clearly states my appeal upheld or the companies original decision upheld.

 

Allegation 1 - They confirm they cannot prove i gained. Awaiting confirmation that they upheld my appeal.

Allegation 2 - My appeal to this was upheld so not guilty.

Allegation 3 - They do not have dates on when evidence was gathered so accept that it was probably on a lunch break - awaiting confirmation that they upheld my appeal

Allegation 4- My appeal not upheld company decison was correct.

 

Until i have final confirmation i accept that it is hard to advise however alleagtion 1 and 3 it is stated for both that they cannot prove i either they have confirmed that they have no proof i gained from the time sheets issues and due to there own evidence gathering (Allegation 3 no evidence time or date stamped).

[mikeyboy197663]

Hi,

 

From reading all the posts, it looks like they have withdrawn all the allegations except allegation #4 ?

 

Is this correct ?

 

if it is, then you only have to worry about the one allegation, #4.

 

They seem very badly organised if they started with 4 allegations but could only get 1 to stick.

 

Did they give an exact reason as to why allegation #2 was dropped ?

 

Regards

[majik]

Hi

 

Thats the way i see it aswell, first 3 alleagtions have been dismissed so then that bring me to the question why was i originally suspended ?

They took around 8 weeks getting info behind my back before i was suspended which has all proved either false or inconclusive !

 

Only reason for dropping of allegation 2 was the could not prove the van was not used in accordance with company policy. They did note that i did not fill out the paperwork i should have but as they cannot prove that i did not pay for the van as i have always insisted i did the upheld my appeal.

 

They have not got 1 to stick as far as im concerned, they have provided no proof i did any wrong doing in relation to allegation 4, it is more of an opinion based on evidence that they will not allow myself to see. My OH hopes once he obtains the CCTV he requested it will clearly show his versions of events and hopefully even show him reciting the code back to the staff member after she had informed him what code to use.

Also he feels as he signed in as a visitor and signed out once he had the photo's he needed he was never onsite with authorisation and as such no wrong doing has been comitted. Also if i gave my parnter the code as the company suggest why did he stand around for 2-3 minutes for the staff member to finish a telephone converstaion before getting the code and going to the other building, If i gave him the code as suggested he would not have needed to wait around and could have simply gone straight over the the building in question.

 

Again its all if's and buts atm, im hoping once the ET accept the claim and i get the companies defense things should be a lot clearer.

ATM i feel that the only thing the company could not win on would be allegation 4 as to date they have shown no proof/evidence to prove their version of events and even if they now produce it it would be produced 2.5 months after the event and 1 month after the appeal meeting so far to late surely.

 

As i stated earlier im hoping for it to go to ACAS and i can show they they did not follow the ACAS code of conduct/principles and get it settled before it goes to ET.

 

Can you confirm that i have understood the process correctly, as i see it if it goes to ET it will only be about allegation 4 as the other 3 have already been upheld in my favour (awaiting clarification atm i know).

[mikeyboy197663]

Hi,

 

So regarding allegation 4, have they never shown you any evidence at your disciplinary hearing or at the appeal ?

 

I understand that they have never given you the evidence, but have you seen it at any meetings ? or was you offered to see it ?

 

Regards

[majik]

No i have never seen any evidence in relation to allegation 4 or have i ever been offered copies of the evidence, i did have asked and was told at the appeal that if the company see it as relevant they will release it but to date they have not.

 

The original disciplinary meeting was adjurned for 30 minutes while they carried out in their words "a full and through investigation" and it was acknowledged that they had spoken to the staff member on the phone and she denied giving my OH the code so in i was told that i had lied and they they did not believe my partners witness statement/my version of events.

 

I was told at the appeal to the disciplinary meeting that a witness statement from the female staff member exsisted and the person chairing the meeting had seen it and that if the company feel it to be relevant they will release a copy to me.

 

To date i have not seen anything in relation to allegation 4, in the minutes/letters it is purely written that following a telephone call to carify the issue we believe that you have lied (that is from the dismissal letter) and that i have seen the witness statement and i do not believe your version of events (appeal to dismissal). Thats what i find so frustrating how can i possible defend myself when they will not show any evidence relating to the issue. How can they possibly win an ET when they have refused me the ability to correctly prepare (disciplinary and appeal) /defend myself aginst this alleagtion.

[mikeyboy197663]

Hi,

 

Have you checked the minutes from the meetings (suspension, disciplinary, appeal) thorughly to make sure that it does not say they offered you the evidence or have shown you the evidence ?

 

Did you thoroughly read and check the minutes before sigining them ?

 

We know how sneaky companies can be.

 

Regards

[majik]

Yeah all checked and double checked, makes referance to it being released if they feel its relevant and also there is confirmation that a witness statement does exsist as i point out that i had not seen it etc.

I have still not to date recieved a typed copy of the appeal minutes only have a copy of the hand written ones which are ilegible at best but can make out the bit that clearly states that should the chair person feel it relevant the witness statement will be released.

 

At no point is it/was it ever offered to me and at no point was it used in any part of the meetings etc.

 

This is why i am unsure how to correctly proceed ? the statement is quite clearly a large part of their allegation but as it has never been used to date can it be used in the ET ?

 

Mikeyboy 197663, you menetioned you recently won an ET, Can you help advise on the process and and how it went etc i want to prepare myself as best as possible

[mikeyboy197663]

Hi,

 

As long as they have supplied you with a copy of the minutes and you have signed them, they do not need to supply a typed version (even if they said they would) sorry but that is the law.

 

So there evidence is a statement from the member of staff and cctv footage ? what reasons have they gave you as to why you cannot see or have this ?

 

Regards

[mikeyboy197663]

Hi,

 

Go here first Employment Tribunal > Forms & Guidance

 

And then i can answer any questions on it, but beware if you lose they can make you pay all costs, which can amount to thousands, and even if you win you may have to pay fees as well.

 

Has there ever been any bad feelings between you and the management ? as they will want to establish this before the ET. to see if there is any biased opinions.

 

Regards

[majik]

Their only evidence is a witness statement. The haven't said i cannot have it, they have said they will release it if they see it relevant. To date they have not released it so surely it cannot be relevant.

 

My OH has requested the CCTV via a SAR to prove his version of events correct. They have not used any CCTV in relation this this allegation nor have they mentioned that they will. My OH has requested it as he believes that it will prove his version of events and disprove the witness statement claiming that he did not obtain the code from staff member.

 

It is confirmed in the minutes that that the hand written copy will be typed up and sent out but they have no to date. If they do not provide the typed up minutes that is up to them the copy they have supplied is of no use every 2-3 words are unreadable.

[majik]

Hi,

 

Go here first Employment Tribunal > Forms & Guidance

 

And then i can answer any questions on it, but beware if you lose they can make you pay all costs, which can amount to thousands, and even if you win you may have to pay fees as well.

I have already read that and am also aware that it i have behaved incorrectly i could be liable for costs but as i have not and i can clearly prove they have i dont feel that will be an issue.

 

Has there ever been any bad feelings between you and the management ? as they will want to establish this before the ET. to see if there is any biased opinions.

 

None what so ever, had my review 3-4 weeks before i was suspended and was very pleased with me.

 

Regards

 

Please see my comments in red

[mikeyboy197663]

Hi,

 

Why did you sign the minutes of the meeting ? if they are eligible you are within your rights to ask for them to be typed up then you will sign them. be very carefull as there may be something in there you cannot read that will go against you.

 

Even if you win your ET you may still be liable to pay costs, they dont allways make the employer pay.

 

Just making you aware of this before you proceed, as it can be expensive.

 

at your review did you get a high grade ?

 

Was there any training points or issues etc ?

 

Regards

[majik]

There was no grading process was told i was doing good job nothing mentioned in regards to training or other issues and as i was training the new member of staff it would prove that they thought i was at a good enough level to do so.

 

I signed the top of each page of the minutes on the understanding that it would be typed up, it is noted in the minutes that it will be typed up and they have done so with all other minutes, I have not and can not accept the minutes until they are provided in a legible format.

 

Again as i have not behaved incorrectly i feel there is a very low risk of having to pay any legal costs and as i have made every attempt to mitigate my losses and to reach an agreement before the ET paperwork was filled it would be a massively remote possibility in my opinion.

[mikeyboy197663]

Hi,

 

Sorry to tell you this, but as soon as you signed the minutes, by law you have accepted them and anything written in them. And a ET judge will tell you the same, sorry.

 

The way you have behaved will not have much to do with costs, i had to pay my costs even though i won my ET case.

 

Just wanted to pre-warn you as many people do not realise this.

 

Regards

[majik]

Im not worried about my own costs i have those sorted, i thought you meant i may have to pay the other sides costs etc. Thats why i said i have behaved correctly so the cahnce is mininal.

 

The minutes are kinda irrelevant as the meeting was mainly about allegation 1-3 which they have all upheld in my favour, Allegation 4 is merely addressed in the apeal minutes as "i have seen a witness statement from staff member and i believe that so i feel you have lied etc" . Although as i have said i have never given my version of events as i was not there, i merely state i did not give out my code.

Edited December 11, 2009 by majik

[mikeyboy197663]

Hi,

 

Sorry i dont quite understand what this means ??

 

"Allegation 4 is merely address as i have seen a witness statement from staff member and i believe that so i feel you have lied etc"

 

I thought you had said that you had never seen any evidence at all for allegation 4 ?

 

Sorry just getting a bit confused.

 

Regards

[majik]

I have not seen any evidence, in the appeal meeting minutes it is merely address by the person chairing the meeting as "i have seen a witness statement from staff member and i believe that so i feel you have lied etc"