Gross Misconduct ???

[greendollar]

Hi ,

I have a Tribunal very soon .

There have been numerous issues with my dismissal but one of the many lines in my defence will be that the offence did not warrant a gross miconduct charge .

I worked on the railway so there were quite strict rules & regs in place .

The charge was a riding on an unsuitable rail vehicle and a seperate charge of getting off a moving rail vehicle .

Whilst this must seem dangerous to anyone outside the industry I would like to point out that as part of my duties I was required/permitted to get on moving rail vehicles numerous times during my working day and there is nothing unusual in doing so .

The issue they dismissed me for was the type of wagon I was on was unsuitable BUT the rule states that I can get on ANY moving vehicle IF I deem it safe to do so .

My question is that if the rules states I can get on any wagon if I feel it is safe to do so then is a charge of gross misconduct warranted when I do just that ?

[SarEl]

Hmm - this is one that is going to be a judgement call for the tribunal, and I don't envy them one little bit on it. My personal opinion is that I would be thinking: in an industrial situation like this the obvious test to apply would be around why this vehicle was unsuitable. If, for example, that particular type of vehicle is ALWAYS considered unsuitable to board whilst moving, then that "rule" would override the rule that you can get on any moving vehicle if you deem it safe to do so - because if the rule says it is always UNSAFE to do so, then your judgement should never override that. On the other hand, if there was a reason why this PARTICULAR vehicle was unsafe to mount whilst moving, it's more of a grey area. Then I would be looking at whether the reason why it was unsafe was particularly obvious - in other words, whether it was a lapse or error of judgement rather than one of stupidity. because whilst I can see your argument also - that the rule permitted you to mount a moving vehicle if you deemed it safe to do so, nobody in their right mind would extend this to apply to every situation in which you chose to do so if the choice was patently stupid! So mounting the London express whilst whizzing at 60 miles an hour through the station would be b***y daft in anyones book, and it would be unlikely that you could convince a tribunal that a decision on your part that it was safe to do so would ever be anything but insane! This is, in tribunal terms, going to spin on that word "reasonable" - and you know as well as I do that there is no way of predicting that one.

[SarEl]

PS - You weren't trying to get on the London express while it whizzed through the station at 60 miles an hour - where you ???

[greendollar]

PS - You weren't trying to get on the London express while it whizzed through the station at 60 miles an hour - where you ???

 

Haha , definately not SarEl

 

The wagon in question was moving at walking pace and I got on to remove a piece of debris (part of my duties were to ensure all wagons are clean) as the wagons were part of a train due to go out on the mainline within the next hour .

As I've stated there is nothing unusual about getting on moving wagons and engines , we did it all day long but the issue is ' riding on unsuitable wagons ' which we interpret as they don't want you to be seen taking a jolly around the yard as it looks unprofessional , its not particulary dangerous if you know what your doing and I'd been doing the same job for 6 yrs no problem .

We contend that its not a violation of set down rules worthy of a gross misconduct charge due to the ' you can get on any wagon if you feel its safe enough ' rule .

We do have witnesses attending that will testify that the have received more lenient treatment for the exact same offence(same type of wagon).

The first received a verbal warning .

The second received a verbal warning for the first offence , a written warning for repeating the offence who then went on to receive a final written warning for a seperate offence and the was given a final,final written warning and downgraded for a further offence whilst still on a final warning .

Me , sacked first offence .

This coupled with the roster showing I was dismissed before my disciplnary hopefully will be enough to win my case (although there is some issues with the reporting/investigating manager that we are also questioning )

[SarEl]

That sounds rather better - I would have thought it would be viewed rather less seriously then. Good luck with it - if it doesn't get postponed again!

[greendollar]

That sounds rather better - I would have thought it would be viewed rather less seriously then. Good luck with it - if it doesn't get postponed again!

 

They haven't been in touch so far ( 2 weeks to go) and we've heard nothing from the Tribunal Service . I'm thinking they might not turn up on the day and make out they knew nothing about the new date(s) ..... if their conduct in the past is anything to go by this wouldn't surprise me in the slightest

[Bignick58]

Wouldn't there be a default judgment in that case Dollar?

[MrBlack]

Um... but if there are other witnesses that are testifying for you, regarding the less severe punishment they had for the same offence, the question is, were you aware of the disciplinary action against others for this offence *before* you did it too ?

 

The previous warnings against your co-workers might have been attempts at 'getting the message across' to the rest of the workforce about how the higher management viewed this practice (not the best way of spreading a message admittedly, but I've seen employers being quite unprofessional and using this tactic of scaremongering before), and when your case came up, they thought "Here's another bloody one!" and decided to sack you.

[SarEl]

Um... but if there are other witnesses that are testifying for you, regarding the less severe punishment they had for the same offence, the question is, were you aware of the disciplinary action against others for this offence *before* you did it too ?

 

The previous warnings against your co-workers might have been attempts at 'getting the message across' to the rest of the workforce about how the higher management viewed this practice (not the best way of spreading a message admittedly, but I've seen employers being quite unprofessional and using this tactic of scaremongering before), and when your case came up, they thought "Here's another bloody one!" and decided to sack you.

 

The way to get a message across is to write it in balck, on a piece of white or buff paper, and stick it on the notice board that says at the top "Important staff notices". Tribunals tend to take a dim view of smoke signals

[meekmeek]

if getting on and off a moving vehicle is classed as a health and safety issue and worthy of gross misconduct hearing then the fact that your colleagues recieved warnings shows that they did commit a offence otherwise the verdict would have been innocent with no warning or slapped wrist at all

 

the difference between you and other colleagues may be how you dealt and responded with the hearing where they may have been apologetic and pleaded that they would not get on wagon x in that manner again where you may have suggested that your within your right to do it and feel that you can continue to do it

 

even after knowing colleagues received warnings for a health and safety misconduct, you did not try to avoid any risk and continued to walk on and off the moving wagon

 

i know you have been doing it for years but when health and safety is concerned no rule can over-ride it and health and safety limits can change instantly if from one day a mondane task leads to a injury they can change the risk levels to reduce chances of further injuries

 

was your initial defense that it is acceptable to do this - or apologetic that you will take extra care in the future when judging speeds etc

 

so just be careful how you word your defense. may suggest asking how wagon x is different to wagons y or z where they would deem it as acceptable to make a judgement call. whether any memos were sent out warning that out of all wagon types wagon x risk rating has been raised and should only be entered at a full and complete stop

 

the use of colleagues receiving lighter punishment is a weak defence as they did infact receive a punishment

for example some well known celebrities may only recieve light sentances for drugs, sexual acts or murder. would you deem it fair for ALL criminals to be awarded community service instead of a prison sentance all because one person got a lighter sentance. each punishment is based on the individual circumstances and also how the accused pleads and feels responsible for.

Edited February 8, 2011 by meekmeek

[greendollar]

Thanks for your replies ,

 

The difference between my offence and my other colleagues (althought the same charge) was that they admitted to ' riding on the wagon ' , in other words hitching a lift rather than walking . What I was doing was getting on the wagon to remove debris before it went onto to the mainline , I was seen by a manager & 2 outside contractors performing this task , as soon as I came into view of the manager he shouted at me .....this startled me so I immeadiatly jumped off the wagon .

One of my gripes is that the manager acted in an unsafe way by shouting at me when I was carrying out safety critical duties and that he should have signed the contractors in and notified me that they were in my part of the yard , this was not done .....a serious breach of safety procedures .

My defence was that I was just carrying out my duties , ensuring all wagons were clear of debris and that I was not ' riding on the wagon '

The offence of riding on the type of wagon I was on was usually dealt by a quiet word , repeat offenders were disciplined , no memo's were ever put out concerning this breach and they never accepted my explanation as to what I was doing and went ahead with my dismissal saying that although they fully accept that my previous safety on the line record is clean they felt ' on the balance of probabilities that this was not my first deviation from their safety standards ' .

Edited February 9, 2011 by greendollar

[greendollar]

Wouldn't there be a default judgment in that case Dollar?

 

 

You'd think so wouldn't you Bignick , the one and only time we've managed to get them to attend a tribunal in the last 2 and a half years the judge abandoned it due to their failure to comply with the judges orders . I thought I was gonna get a default judgement then but the judge calmed down and gave them yet more time to get their act together .