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Formal sickness interview and gross misconduct???


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Hi Guys

 

I just need some advice re: work matters

 

To cut a long story short, My manager went on maternity leave, the deputy manager took over and since she did we did not get on. I was signed off work with stress for about 5 seperate weeks. This has also led me to have a gastro illness, which is being investigated, which ive also been signed off work for.

 

During this time i didnt feel i could go to the board regarding my issue with the acting manager. I tried to resolve them myself with her on 2 occasions.

 

However more recently, i was signed off for 2 weeks again because of 'stress'...as well as work related, this was due to my grandad passing away..

 

I emailed the president during this time and told him how I had been treated by the acting manager and aired several problems that had happened.

 

I am due back to work on monday and I received an email today saying that:

"You have previously been advised by the assistant manager that your level of sickness is causing us problems. The situation has since worsened and I have to tell you that, as a small organisation, we cannot sustain such high levels of sickness in an employee. Consequently you are instructed to attend a formal sickness interview on your return to work. You are strongly advised to attend this meeting with your union representative. Please advise me as soon as possible of your expected date of return. I should point out that if you do not return to work by the end of this month we may be forced to meet and make a decision in your absence (your union representative would be welcome at such a meeting).

For your information our records show your sickness for the year as 59 and a half days. However, almost all of this (53 and half days) has occurred since May"

- (This is a few months after the 'acting manager' took over and 8 weeks have all been certified by my doctor)

 

Also the following was said:

 

 

"In your recent email to me you make numerous allegations against the assistant manager. I take these matters very seriously and have already undertaken an initial investigation but have found very little substance in your complaint. You can pursue this complaint as a formal grievance in which case I will provide the assistant manager with a complete list of your complaints against her so that she can prepare her defence and obtain union representation. However, my investigation has brought to our attention a number of matters that require us to institute disciplinary proceedings against you.

 

Disciplinary hearing- gross misconduct

This will take place in conjunction with the formal sickness interview. You will be required to answer the following:

  • That you have misrepresented your hours worked and have not worked the additional hours you requested and that we agreed and paid for.
  • That you have accessed confidential management records and emails contrary to the confidentiality agreement you have signed.

You must not return to work without first contacting myself"

So based on the above. My sickness has all been stress related, that the doctor can agree was all caused by work.

The Gross Misconduct issues...

1. I did not intentionally misrepresent my hours. The acting manager was aware of any problems on my time sheet and brought these up with me. I explained that sometimes I did the time sheet at the end of the week, and I may have honestly made a mistake in regards to the time entered as I did not remember, and she agreed this. As there was CCTV to show me coming in a different time than I had put down. I did not dispute this, as through my sickness, I'm aware I may have made mistakes unintentionally. I also said any time I owed I would make up by not taking lunch or coming into work early. She also agreed this would be ok. So I dont understand why this is now 'gross misconduct' as she was fully aware and I explained myself to her?

2. I did not access confidential management documents. In the email to the board, i merely stated that 'minutes' from a meeting including details of my 'illness' which is saved on the server and any member of staff could access if they wanted to. I actually saw what was written on a print out left on the printer, and didnt think I did anything wrong? I did not click onto the files or view them, so how can that be seen as Gross Misconduct? Theres no proof that they have of this?

Can they dismiss me for these purposes or for sickness? As the disciplinary procedure is verbal, written, final warning before dismissal?

I have contacted my union rep, but wont be able to speak to them until monday now. I know the acting manager has pulled these issues up to obviously try and get rid of me, and I have contemplated resigning due to the high level of stress i have experienced.

I just want to know if I'm looking at warnings/verbal warnings etc...or dismissal.

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Hello there and welcome to CAG. This does sound a mess. I'm sure you'll have other replies, although you may not like them. I'll start off with my initial thoughts.

 

Reading what's been sent, it seems they are handling this well and I can see it could be difficult if they have no manager and now you're off sick. In a small organisation, this will be having knock-on effects to your colleagues. If an employer follows the right procedures, it's my understanding that they can terminate the employment of someone who is ill. The fact that your doctor has signed you off doesn't mean they aren't having problems at work.

 

Regarding your grievance, can you prove your allegations in writing? Sadly, as we see on the forum, management often back other members of management and you may have brought the disciplinary on by complaining. You need to check the company's disciplinary procedure, but with most gross misconduct can lead to dismissal, as we see all the time here.

 

Resigning at this stage may not help you, because the procedures that are being instigated are likely to show up on your reference.

 

I've never been to a disciplinary, although I did have a 'return to work' interview after I was off with stress. But we have people who should be able to advise you how to approach this. I suggest you do what the president says and let him know when you're going back. This could be a bit complicated if you can't find him before Monday, but let's hope you can find your union person soon and get some advice.

 

My best, HB

Illegitimi non carborundum

 

 

 

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I am afraid that most of this is not going to be anything you want to hear. Unfortunately, you do need to hear it, as it isn't good news, so please understand that this is not about taking sides here, it is about the law.

 

Your sickness is an entirely sperate matter and the employer can certainly take action against an employee whose levels of sickness absnece are too high. It does not matter one jot whether the sickness is covered by a GP's certificate or not - the action relates to sickness levels and is nothing at all to do with whether it is genuine or not. It would be unusual for sickness levels to result in a dismissal in the first instance, but small employers do get more leeway on this because it is harder for them to carry very high sickness levels.

 

Your allegation is this is work-related has little legal substance. A doctor gives an opinion based on what you tell them, and nothing else. It is therefore sloppy medical practice to assert that sickness is work related unless there is objective evidence to support this. Your doctors opinion cannot sunstantiate the allegation because he cannot independantly or objectively assert any particular cause for the symptoms arising solely or partially as a result of work. Nor does asserting that they are related to work have any particular meaning - lots of people get symptoms of stress resulting from events at work - but that does not substantiate that the employer is in the wrong.

 

Quite separate is the matter of the alleged gross misconduct. On the first matter I am afraid that the legal position on this would have to be that you are "screwed". It is a dismissable offence to falsify timesheets in anyone's book. And I am afraid that you are the one who has brought this matter to light. I have to be honest and say that I find your explanation unconvincing. It is your responsibility to ensure that your working time is accurately recorded, and I cannot see how being "stressed" is an explanation for filling in a time sheet several days later when you cannot recall the times you arrived and departed. Surely it is a matter of some ease to make a note of your arrival and departure at the time, even if you do not put it onto the time sheet until later? Your manager, quite contrary to your assertion that you do not get on, appears to have taken a reasonable stance and allowed you the benefit of the doubt at the time. Which she was not obliged to do. You then put in complaints about her - did it not occur to you at the time that people in glass houses should not throw stones? If you are complaining to the employer about her treatement of you, did it not occur to you that she would, in her own defence, show how reasonable she had been with you over this matter? Now that the matter is in the hands of the employer, rather than her, it is now them that are taking the action on this matter, not her - and they obviously take a less tolerant view of the situation - something which would not have come to their attention at all had it not been for your complaints.

 

Similarly, it was very foolish of you to mention in correspondence with the employer the contents of a confidential document which you had no right of access to. They may not be able to prove that you accessed the document on the server, but you have provided them with evidence yourself that you have read this document when you had no right to. You cannot prove that you found it on the printer - and even if you did, that does not make reading confidential documents right. An employer does not have to prove that you have done something - "rules of evidence" are very different from those in courts of law. They only have to show that they have a reasonable belief that you have done something, and by referencing confidential information in a letter to them you have furnished them with a reasonable belief that you have accessed confidential material.

 

I am very sorry, but in my opinion you have furnished them with two circumstances either one of which could constitute gross misconduct, and both together I am afraid is overwhelming. Dismissal without notice is within the reasonable range of options for an employer hearing gross misconduct, and I have to be honest and say that I would be most surprised if that was not the outcome. I am equally of the opinion that such a dismissal, based solely on your version of events, would be fair in law.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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