Unfair Dismissal??

[xxflamerxx]

Hi all firstly I'd just like to say that I've been looking around the internet for help with some trouble I've had at my now ex work place and people around here looks as though they know what they are talking about and are willing to give help so heres hoping you could help me.

.

 

I was awoken on Saturday morning by a text message from my boss. I worked for a well known franchised off license company in the UK.

 

His text was asking for me to come into work at 12 and work throughout till 10Pm. I was already due in at 5 for the night shift and tbh long shifts in that place on your own aren't really much to shout about.

 

The text messages went as follows. Red is boss, Purple is me.

 

Do you fancy working today?

Already am later cba with day too sorry.

I cba with you coming in later either!

Okies

I will get a p45 asap for you and you can collect any wages owed on tuesday.

Ok..reasoning behind this?

''cba'' is the reason, I can tolerate being spoken to like that.

I was already meant to be in tonight sooner me lie to you and say something else that that? Not like ive always said no to overtime - I'm doing xmas eve.

The issue is that it is unacceptable to speak to your employer with that kind of attitude.

So your reason for sacking me to clear this up is unacceptable attitude towards yourself?

I have said once it's the ''cba'' attitude. Please do no text me again, if you wish to contact me please do so via letter at ; blah blah blah etc.

 

Now I partly understand where he is coming from, but swearing from him and others in the shop(5 of us) is part of how we talk. The only time he/ or any1 frowns upon it is when there are customers about.

 

Last week he's apparently told one employee that if the weather gets worse he'd have to lay one of us off. Worst day of the year weather wise from where I'm from was, yep you guessed it, the morning/day of the text message.

 

What I'm wondering is that does have the right to either sack me via text, or sack me for what I feel is an absolutely pathetic reason.

 

I've worked for the company for over a year and have a 16 hour a week contract as I only work part time whilst I study at University. I've never had any sort of verbal or written warning in the past.

 

Anybody got any tips on how this should be handled or if he can legally do this.?

 

Thanks to anybody who replies.

Edited December 20, 2010 by xxflamerxx
More info.

[helencb]

It sounds harsh (and unprofessional) but if they believe language is insubordination, then I dont know the outcome would be much different even if they had a disciplinary...( I wouldnt like to hear 'cba' in written or electronic form from any employee, regardless of banter, although that doesn't excuse them for then not following a process fairly). I think the best bet would be to face music and apologise...a bit of bad weather would only be a short term lay off I assume, and so hopefully it is recoverable, as no process has been followed formally, in fact on reading the text i did wonder was the boss joking at the point where the P45 was first mentioned....and once situation recovered I would type out my messages in full to the boss in future...good luck..

[chesham]

Did you honestly tell your employer you "cba" to come into work?

Surely there are other ways of saying "Sorry, I can't make it in today, but I am working later" ?

I agree with the above, I would prefer my staff to bend the truth and be polite and respectful, than the blurt out the above, electronically or verbally....

Sure, it's rude and disrepectful, but doubtful that it's grounds to dismiss you - how long have you worked for this employer/company?

Redundancy has to be handled fairly, and is enough to start it's own thread.

 

Grounds for unfair dismissal are dependant on many factors. Namely your length of service - can you let us know how long so people can advise you of your options here?

[Roblynmouth]

Hi

Text messaging is not an accepted form of communication between employer and employee.

If your employer has sacked you for something texed then there is no legitimacy to substantiate what they have done.

Moreover an employer cannot under any circumstances dismiss you with out having a disciplinary hearing.

If you have been there for 1 years or more this is unfair dismissal

If you have been there for less than 1 year its breach of contract [dependent on what your contract says, not providing you with a contract is also an offense which you can receive compensation for].

[meekmeek]

one

i dont think that its fair for him to without notice request you change shift pattern as its your time

 

two

contacting someone in personal time is a personal and private conversation eg if at the christmas meal you got a lil schloshed and said something youd regret later to the boss he cannot sack you

 

three

hopefully you atleast turned up at 5pm and done your normal shift

 

four

hint you abriviated 'cant be available' cba is not in the dictionary so the text has to be classed as a personal text out of hours if the employer wants to interpret cba as a insult

 

ok time to file a grievance you have lots of other legal things on your side he cannot sack you for refusal of overtime seek legal advice and ask about work/personal life balance

 

hope this out of box thinking is tip bits of info to think about .. they aint full answers just starting points to think about

 

other people will be along soon to fill in some gaps

[Sidewinder]

one

i dont think that its fair for him to without notice request you change shift pattern as its your time

 

two

contacting someone in personal time is a personal and private conversation eg if at the christmas meal you got a lil schloshed and said something youd regret later to the boss he cannot sack you

 

Sorry - absolutely wrong on that one. Any event organised by the employer is an extension of the workplace, and you can (and people are, in large numbers every year!) be dismissed for acts of violence, offensive behaviour and lewd conduct just to give three straightforward examples. Likewise one could easily be disciplined for drunken behaviour itself, although the employer permitting this would be a mitigation, and could lead to it's own questions over the duty of care on the part of the employer.

 

three

hopefully you atleast turned up at 5pm and done your normal shift

 

four

hint you abriviated 'cant be available' cba is not in the dictionary so the text has to be classed as a personal text out of hours if the employer wants to interpret cba as a insult

 

ok time to file a grievance you have lots of other legal things on your side he cannot sack you for refusal of overtime seek legal advice and ask about work/personal life balance

 

hope this out of box thinking is tip bits of info to think about .. they aint full answers just starting points to think about

 

other people will be along soon to fill in some gaps

 

{quote]

Hi

Text messaging is not an accepted form of communication between employer and employee.

 

Unprofessional, yes, but not unacceptable.

 

If your employer has sacked you for something texed then there is no legitimacy to substantiate what they have done.

 

Of course there is (depending on the nature of what was said). It is a written communication, from an identifiable source, unless either party denies that the messages were sent and received.

 

Moreover an employer cannot under any circumstances dismiss you with out having a disciplinary hearing.

 

Oh yes they can! Although this would very much depend on the nature of the offence, and it would involve a Tribunal to determine whether it was 'fair' to do so.

 

If you have been there for 1 years or more this is unfair dismissal

 

Why? Depending on the company's attitute, and the employee's T&Cs, it may well be. It certainly doesn't fall into the realms of a dismissal which is automatically unfair, and could ultimately need an Employment Tribunal to decide whether the employer's actions were 'fair'

 

If you have been there for less than 1 year its breach of contract [dependent on what your contract says, not providing you with a contract is also an offense which you can receive compensation for].

 

The OP has been there for more than a year, and states that he has a contract, but the essence of what you say is heading in the right direction

[/Quote]

 

Fundamentally, it is never a good idea to express the opinion that you can't be bothered to help the business out, unless you put it somewhat more mildly than you did! CBA is 'in the current vernacular' so to speak, and you would be hard pressed to try and say that you were using the abbreviation for any other three words. However, for what it is worth, I think that there is a good deal of mileage in raising a grievance based on the fact that the request was for overtime, and not for normal duties, that (depending what is in you contract), and have not been dealt with in accordance with company procedures.

 

Is there anything in your contract which requires you to do overtime? Would a refusal normally meet with such a response? Get a letter in as soon as possible, expressing the view that whilst you appreciate that 'CBA' was possibly not an appropriate response, you were in your own time, and using common terminology which you believed would be seen in the spirit that it was meant - light-heartedly. You feel aggrieved that the response was disproportionate from your manager, and that instant dismissal, without notice, or with regard to the company's disciplinary procedures is contrary to your Terms of Employment, and to the ACAS Code of Practice.

[Roblynmouth]

Regards Text messages Sidewinder, look at Brooks (W) & Son -v- Skinner, which noted that if an instruction was so important that an employer later relied on that instruction to support a matter of dismissal then that instruction should have been written and given to the employee. Text, Email and messages left on notice boards have no legal standing in Employment Law or contract law for that matter. I won £500 as a result of my previous employer emailing me a instruction to stop doing something which I ignored.

Also the bit about non dismissal without a hearing you have agreed with me in that they cannot without a hearing. However anybody can do anything if they want but it the accountability that matters. Murder is an offense as everybody knows but it don't stop people killing other people.

[Sidewinder]

Regards Text messages Sidewinder, look at Brooks (W) & Son -v- Skinner, which noted that if an instruction was so important that an employer later relied on that instruction to support a matter of dismissal then that instruction should have been written and given to the employee. Text, Email and messages left on notice boards have no legal standing in Employment Law or contract law for that matter. I won £500 as a result of my previous employer emailing me a instruction to stop doing something which I ignored.

 

AFAIAA the Skinner case hinged on whether the instruction was given personally or via the Union, however in the OP's situation the message was acknowledged and a response sent. It would certainly be deemed unprofessional and unsatisfactory to communicate by this means, and if tested at an ET, the employer would undoubtedly be chastised, however the key to a fair dismissal would be whether the act in question was so serious as to be deemed a matter of Gross Misconduct, and whether dismissal was within the range of reasonable responses by the employer. Granted, in dealing with this matter correctly, the manager concerned should have followed up with a phone call, suspended the OP and held a formal disciplinary hearing in accordance with company policy or ACAS guidelines - then confirming everything in writing to the OP.

 

I am actually with the OP on this, and think that the employer is completely in the wrong, both in the severity of the response itself and the manner of dealing with it, however a text in itself will suffice if it is understood and agreed to. Similarly, a company message board is an acceptable means of conveying important information providing that the employee is aware of the need to refer to details posted on it from time to time. A Company Handbook, for example is often 'made available' to staff in general, but is less frequently issued individually. Providing that the employee is made aware of the importance of familiarising themself with T&Cs not expressly written in the contract itself (or basic statement of particulars) then it is no less binding than if individually issued. In the case of a Christmas party and a drunken employee behaving inappropriately, or failing to attend work the next day due to a hangover, then disciplinary action would be more likely to be deemed fair where it could be proved that the employee had been made aware of the need to remain sober and behave himself beforehand. The questions to be considered would be the nature of the advance warning and acceptance of that requirement, and the extent to which the employer condoned the behaviour by for example providing unlimited free alcohol, but to say that in all cases, only a personally delivered letter would suffice is not altogether correct.

 

 

Also the bit about non dismissal without a hearing you have agreed with me in that they cannot without a hearing. However anybody can do anything if they want but it the accountability that matters. Murder is an offense as everybody knows but it don't stop people killing other people.

 

Entirely agree. The employer must be prepared to stand up in front of an ET with adequate justification for taking the action which they did. Only if the ET finds that the action was not justified would the fact of whether an appropriate procedure was followed become relevant. Everyone knows that murder is wrong, but then everybody should also know that offensive behaviour towards their employer is also wrong - that is why examples for Gross Misconduct are normally 'non-exhaustive' - they automatically include acts which any reasonable person would know to result in a serious breakdown of the relationship between employer and employee. Was this such an example? I believe not, but then I don't chair Employment Tribunals...

[/QUOTE]

 

..