Unfair Dismissal? ***WON***

[mariefab]

They'd have to ask for an extension, usually 2 weeks would be allowed, and you'd be sent a copy of their request.

If they don't do so a default judgement could be entered against them and they'd be precluded from taking any further part in the proceedings.

[clemma]

As far as the court is aware nothing has been submitted - no extension asked for and no ET3. They seem to have just ignored it. This is no little company - this is a huge, National company with a huge HR department. I would have thought they'd have no excuse for not replying. He will know for definite tomorrow.

 

As for a default judgement, I have no idea whether this would guarantee him compensation or not. Time will tell.

[papasmurf1cx]

You may want to write to the judge, if they have not bothered to reply, and ask him for a "unless" order and ask for judgement to be entered in default of the 'unless' order.. These orders are are worded something like ' UNLESS the respondent does not reply / enter a defence/ etc etc/ within x time frame eg 2 weeks, then jedgement for the plaintiff will be entered.

 

It sounds to me they are cutting their losses and not employing lawyers for a claim that is unjustifiable. They may just be waiting to get the compensation hearing and try and mitigate their losses, and make you do the work to get there. I may be wrong, of course.

[clemma]

It sounds to me they are cutting their losses and not employing lawyers for a claim that is unjustifiable. They may just be waiting to get the compensation hearing and try and mitigate their losses, and make you do the work to get there. I may be wrong, of course.

 

This is exactly what the OH thinks. They have attended tribunals in the past (which they won), so it does seem as though they have just given up on this one as a loss.

 

After the OH speaks to the court again tomorrow, and if they definitely have no response, we will go ahead with your advice. Cheers papasmurf

[papasmurf1cx]

No problems!! Happy to offer an opinion..... oh and I wanted that 1000 marker on the post yipee

[clemma]

So the OH spoke to the court again. It appears the company applied for an extension (which they received yesterday - a day late) and the judge has granted it. They gave the crappy excuse that it was sent to the wrong place (i.e. the place he worked rather than head office). I don't know about you, but couldn't the GM have forwarded it on???? Anyway, they have 2 weeks from yesterday. It all seems unfair to be honest.

[papasmurf1cx]

No-one has said that it would be easy. These extensions happen almost automatically. Don't get hung up about it, you may need one at some point and then wait to see the objections that go in from your opponent !!

[locutus]

Well, as it's now been passed to "head office" I'd guess a fresh pair of eyes may look over it and offer a reasonable solution that may meen no court action is needed... Hope for the best but be ready for the worst, I'm sure you already know that.

 

I can't offer much more than just moral support tho, so best wishes and let us know of any developments.

[clemma]

So I am just thinking ahead here. If this goes to court, then the OH is going to need documentation from the company to help prove a couple of things. This will be paperwork submitted to the manager from 2 different departments about the owners caravans that had not had the drain down work done on them. This will go a long way to prove that the OH was not responsible for the damage to the units (although if he was then he has amazing control of the weather - the only thing that can cause damage is water bursts after ice has thawed). Now, when he requested this paperwork for his appeal, it was denied to him as not being relevant - presumably it was not relevant to the company (it would show bad management) rather than to the OH. So, if he asks again for this paperwork for the court bundle, and it is denied to him, what happens?

 

We also know that the GM is going to try and state further "problems" they had with the OH - one's that have come to light since his dismissal. I am sure we can just answer back that it's irrelevant, can't we? We only presume this because of what he told ACAS.

 

Oh, and one more thing - we are moving to Leeds very soon. Will the case be transferred to the court up there (we are in the south east at the moment)?

 

(As an aside, we know the paperwork will be denied to him as the Manager all but admitted to me that he could not find it).

[RachelMD]

So I am just thinking ahead here. If this goes to court, then the OH is going to need documentation from the company to help prove a couple of things. This will be paperwork submitted to the manager from 2 different departments about the owners caravans that had not had the drain down work done on them. This will go a long way to prove that the OH was not responsible for the damage to the units (although if he was then he has amazing control of the weather - the only thing that can cause damage is water bursts after ice has thawed). Now, when he requested this paperwork for his appeal, it was denied to him as not being relevant - presumably it was not relevant to the company (it would show bad management) rather than to the OH. So, if he asks again for this paperwork for the court bundle, and it is denied to him, what happens?

A request would need to be made to ET, if the Respondant doesn't cough up when you ask them to.

 

We also know that the GM is going to try and state further "problems" they had with the OH - one's that have come to light since his dismissal. I am sure we can just answer back that it's irrelevant, can't we? We only presume this because of what he told ACAS.

Exactly. The Respondant may well try to add accusations that weren't contemporary, but you must maintain that such accusations aren't relevant.

Plus, their use of such accusations undermines their case- if the accusations they made leading to OH's dismissal were substantial enough, why do they feel the need to introduce new accusations at this stage?

Oh, and one more thing - we are moving to Leeds very soon. Will the case be transferred to the court up there (we are in the south east at the moment)?

 

(As an aside, we know the paperwork will be denied to him as the Manager all but admitted to me that he could not find it).

I would imagine that the hearing would be held in the ET you applied to. Might be worth phoning and asking.

I'd very strongly advise against moving to Leeds.

[clemma]

Thanks, I will tell the OH to phone them. As for the move to Leeds, we have very little choice. With a baby due in 6 weeks, and no where to live (the place we are in is not suitable to bring a baby home to), we have been offered a 2 bed, furnished house in Leeds (no deposit needed). My best friend currently lives there and we have done a deal with her landlord. It is also much closer to both our families and the job prospects are much better. Unfortunately we have to do what is best for our family.

[RachelMD]

I was joking (well, sort of:wink:). I hope it all goes well for you.

[clemma]

Update

 

Received a copy of the ET3 today. All I can say is hmmmmm.

 

They are still trying to say the OH is to blame for the damage to units.

They are skirting over the reason for dismissal and using 2 separate charges (the one's that we're brought up in the invitation to appeal letter).

They are stating that IF the unit had been checked properly then remedial action could have been taken - between the OH making the mistake and the owner of the unit finding damage was 2 days. No remedial action can be taken once a unit is damaged by burst pipes etc.

They have neglected to answer to the allegations that management were aware in November AND December that the work had not been carried out.

They are using the fact the OH did not attend the appeal as part of their defence - neglecting to mention the reasons the OH gave (i.e. refusal of paperwork/documents to assist him with his appeal and the further charges added).

Procedural errors all accounted for by "administrative errors" (really, 5 or 6 times???)

They also state that the bad weather was in January. In fact, January was very mild and the temperatures were not low enough to cause ice. The bad weather was end of November/beginning of December (should I get weather reports to prove this?) Therefore they are saying the damage was done around the time the OH checked the units.

 

There is more to it than the above, but this is the main part of it. The rest is trivial stuff (dates of emails etc.)

 

Any thoughts people?

[mariefab]

I think that you have documentary evidence that a few days after he received a written invitation to a disciplinary hearing to answer allegations that 'may constitute misconduct and may lead to a warning', your OH was dismissed after that hearing for 'Incorrect information on paperwork given to xxxx causing owner dissatisfaction'.

 

I also think that his employers realised shortly afterwards that, because of the above, they may have handed him a winable unfair dismissal claim.

 

I further think that everything they've done since, including the contents of their ET3, are their attempts to obfuscate, side -track and otherwise divert attention from the original unfair dismissal.

Happily they appear to have inadvertantly given you additional helpful documentary evidence while they were at it.

 

Did you send the letter you had on standby? (fingers crossed that you didn't)

[clemma]

Ah, thank you very much

 

The letter we had was forwarded to ACAS who in turn did forward it to the GM - however, this was after the ET1 was submitted, which contains identical information anyway. They've taken no notice of anything the OH has stated in either anyway and just carried on with their own, different, story (fairytale). At least everything the OH has stated he has documentary proof for.....

 

One other thing that puzzles me. They have stated that the OH was offered numerous opportunities to undergo further training but apparently he refused. The OH has no idea what this training was. He did ask for support at one point (this was during the disciplinary procedure though) with regards to his dyslexia and also repeatedly asked for the chance to become Gas Safe over 2 years (always denied). I doubt they will have anything to prove these training opportunities - although I will ask for proof. They should have to substantiate anything they have stated, and not just verbally......or am I wrong?

 

They also keep mentioning 12 units. Yes, 12. Not 3 (which were the only ones brought up throughout the meetings).

 

Oh, and I do hope they have the original hand written notes too, as I want them. The typed notes are missing huge gaps of information - this is obvious when you read the questions asked and the answer makes no sense (or vice-versa - the OH states something which is completely ignored and a total change of topic happens).

[clemma]

Another thing. Not once have they mentioned that the OH was never told he could be dismissed, although they are quick to point out that he declined to delay the meeting (due to short notice) and the right to representation. Indeed. But he thought he was facing a warning, as that is what they told him.

[Murphy's Law]

I have read this for the first time tonight and believe that you have a very strong case when it goes to the Tribunal.

Regarding the paperwork you requested - have you formally asked for information under the Data Protection Act?

Have you asked for a copy of OH's personnel file?

Am I right in thinking that you have two dismissal letters - one from the first hearing where he OH was sacked for misconduct, and one from the appeal hearing where it was found that OH was sacked for gross misconduct?

[clemma]

Thank you for looking through this as I know there is quite a lot of information in there!

 

Regarding the paperwork you requested - have you formally asked for information under the Data Protection Act?

 

Not yet, but we will be asking for it as part of the court proceedings. He really needs that paperwork

 

Have you asked for a copy of OH's personnel file?

 

No, and I never even thought of doing so! I will add it to the list of things we need. His file will show an excellent record i.e no previous sanctions, disciplinarys etc

.

Am I right in thinking that you have two dismissal letters - one from the first hearing where he OH was sacked for misconduct, and one from the appeal hearing where it was found that OH was sacked for gross misconduct?

 

The original dismissal letter states he was dismissed for "Incorrect paperwork given to xxxx causing owner dissatisfaction" and does indeed state that he be dismissed for misconduct on the 8th February (they did send a letter dated 25th February stating this was an administrative error and it should have stated gross misconduct. They sent that in reply to the OH's demand for notice pay as it states in the company handbook that dismissal for misconduct entitles him to it.)

 

The invitation to appeal letter is in a world of its own. In this, the original reason for dismissal is not mentioned, and instead two further charges of "Carelessness and recklessness with owner/company property" and "unacceptable standard of workmanship" are mentioned. These are noted as offences that could constitute gross misconduct and lead to his dismissal. The OH was expected to go in and appeal against 2 charges he was not dismissed for. This, plus the fact they would not provide documents (deemed as irrelevant by them, which we have in writing) led to the OH's decision not to attend. In hindsight, maybe he should have, but he knew a fair and unbiased appeal would not happen.

 

The first time gross misconduct is mentioned is in an email received from the GM after the OH put in an appeal. This is when the GM first realised (or admitted to) the errors that had been made and states that the OH should have been advised that "the outcome could potentially be considered gross misconduct and give rise to his dismissal".

 

The invitation to appeal letter is set out in the same way as his disciplinary meeting letter, just with the word changed from "disciplinary" to "appeal". At one point, the GM even suggested re-doing the whole disciplinary procedure from scratch (and yes, we have that in writing too).

Edited June 23, 2011 by clemma

[Bigredbus]

Hi,

 

Been very briefly reading the entirity of your thread (Yes, I did! - for those who understand!)...

 

(a) If the reasons stated in the letter of dismissal are not capable of amounting to 'gross misconduct' as stated in the internal policy, then the employer will have difficulties in justifying dismissal.

(b) No employee should be dismissed for a first offence, more so if it is just 'misconduct',

© There seems to be a plethora of procedural irregularities and, although, a failure to follow the ACAS Code of Practice does not in itself render a person or organisation liable to proceedings, tribunals will take the Code into account when considering relevant cases.

[clemma]

Hi,

 

Been very briefly reading the entirity of your thread (Yes, I did! - for those who understand!)...

 

(a) If the reasons stated in the letter of dismissal are not capable of amounting to 'gross misconduct' as stated in the internal policy, then the employer will have difficulties in justifying dismissal.

 

The company handbook has a whole lot of misconduct and gross misconduct offences. The OH's seems to fall under the misconduct offence of "failing to carry out your duties". There is nothing in the gross misconduct list (and it's a mighty big list) that comes close to describing the offence.

 

(b) No employee should be dismissed for a first offence, more so if it is just 'misconduct',

 

And this was indeed his first offence.

 

© There seems to be a plethora of procedural irregularities and, although, a failure to follow the ACAS Code of Practice does not in itself render a person or organisation liable to proceedings, tribunals will take the Code into account when considering relevant cases.

 

Thank you for taking the time to have a little look through and for the information you've given me.

 

Ok, so now I am thinking about what is reasonable to ask for, documents wise, from them. I am within my rights to ask them for the paperwork relevant to the drain down work which will show that the maintenance manager was aware the work had not been carried out in November and then again in December. Also, can I ask for proof of training and support offered to OH and proof of the owner claiming compensation (something they maintain is part of the reason for dismissal). I will also be asking for his personnel file.

[Bigredbus]

Thank you for taking the time to have a little look through and for the information you've given me.

 

Ok, so now I am thinking about what is reasonable to ask for, documents wise, from them. I am within my rights to ask them for the paperwork relevant to the drain down work which will show that the maintenance manager was aware the work had not been carried out in November and then again in December. Also, can I ask for proof of training and support offered to OH and proof of the owner claiming compensation (something they maintain is part of the reason for dismissal). I will also be asking for his personnel file.

 

_______________________________

 

Personnel file should be requested under the Data Protection Act 1998 (the DPA)... you will find templates on the forum, although those ones are directed at banks... just adapt one for the purpose of your request. Statutory fee is £10.00 (Ten Pounds).

 

You may ask for any existing document you may think be adequate in supporting your case.

 

In your post (#145), you mention that the handbook of employment contains a vast list of 'misconducts' and 'gross misconducts'... would you mind telling us how this chapter, in the handbook, is presented... please!

 

In other words, how is that list stated? - and what is the introduction to the chapter/section?

Edited June 23, 2011 by Bigredbus
Addendum

[clemma]

_______________________________

In your post (#145), you mention that the handbook of employment contains a vast list of 'misconducts' and 'gross misconducts'... would you mind telling us how this chapter, in the handbook, is presented... please!

 

In other words, how is that list stated? - and what is the introduction to the chapter/section?

 

It's a chapter in the handbook called "What happens if things go wrong". It then describes the disciplinary guidelines, the 4 possible outcomes and the reasons why you would receive that decision (Verbal warning, 1st written, final written and dismissal), right to representation, right to appeal then it states:

 

Misconduct - with 6 examples. This list is not exhaustive.

Gross misconduct - with 25 examples. This list is not exhaustive.

 

As I said, the "Failure to carry out duties" is in the misconduct list. I've just had another read of the ET3 as well and they have said, and I quote:

 

"The Respondent respectfully submits that the claimant contributed to his own dismissal in his failure to properly perform his duties as requested"

[Murphy's Law]

I believe that the Tribunal will look at the first dismissal letter only because that is the letter that confirmed the dismissal. I believe that the Appeal letter where they tried to add in other allegations will be ignored.

Looking at the first dismissal letter - am I right in believing that OH received an invitation letter to the disciplinary hearing and there was no mention of the possibility of gross misconduct? And the first dismissal letter advised that the allegation "incorrect paperwork given to XXXX leading to owner disatisfaction" was proved and therefore OH was dismissed for misconduct. A couple of weeks later they sent another letter advising that this should have read gross misconduct. They claim there had been an admin error but it seems much more than that when the invitation letter did not mention the possibility of gross misconduct and the first dismissal letter didn't mention it either.

It seems to me that the paperwork you need is the paperwork to show Management knew about this issue in November and December. They will not want to give you this because you have a won case as soon as you have this paperwork. However, I would ask for it now so that you have time to include it in the bundle. If they don't provide it I would write to the Employment Judge and ask him to issue an order for this paperwork.

 

You also want to discredit Management (even if you get the requested paperwork). Security checked the units in December - could you get a statement from a security officer confirming this. A difficult one because while these officers may be afraid of putting their heads above the parapet, or they might even be brown noses and side with Management (it is times like these where you find yoour true friends)

[Bigredbus]

It's a chapter in the handbook called "What happens if things go wrong". It then describes the disciplinary guidelines, the 4 possible outcomes and the reasons why you would receive that decision (Verbal warning, 1st written, final written and dismissal), right to representation, right to appeal then it states:

 

Misconduct - with 6 examples. This list is not exhaustive.

Gross misconduct - with 25 examples. This list is not exhaustive.

As I said, the "Failure to carry out duties" is in the misconduct list. I've just had another read of the ET3 as well and they have said, and I quote:

 

"The Respondent respectfully submits that the claimant contributed to his own dismissal in his failure to properly perform his duties as requested"

 

____________________________

 

They will have difficulties in justifying dismissal in which the offence(s) he has been charged with does not warrant gross misconduct (as you stated) and therefore dismissal...

[clemma]

I believe that the Tribunal will look at the first dismissal letter only because that is the letter that confirmed the dismissal. I believe that the Appeal letter where they tried to add in other allegations will be ignored.

Looking at the first dismissal letter - am I right in believing that OH received an invitation letter to the disciplinary hearing and there was no mention of the possibility of gross misconduct? And the first dismissal letter advised that the allegation "incorrect paperwork given to XXXX leading to owner disatisfaction" was proved and therefore OH was dismissed for misconduct. A couple of weeks later they sent another letter advising that this should have read gross misconduct. They claim there had been an admin error but it seems much more than that when the invitation letter did not mention the possibility of gross misconduct and the first dismissal letter didn't mention it either.

 

That's it in a nutshell, yes. There was also no mention of the possibility of dismissal until he received his dismissal letter.

 

It seems to me that the paperwork you need is the paperwork to show Management knew about this issue in November and December. They will not want to give you this because you have a won case as soon as you have this paperwork. However, I would ask for it now so that you have time to include it in the bundle. If they don't provide it I would write to the Employment Judge and ask him to issue an order for this paperwork.

 

My thoughts exactly.

 

You also want to discredit Management (even if you get the requested paperwork). Security checked the units in December - could you get a statement from a security officer confirming this. A difficult one because while these officers may be afraid of putting their heads above the parapet, or they might even be brown noses and side with Management (it is times like these where you find yoour true friends)

 

I don't know if they would be willing to, but as I am a Team Leader for the Security Team and I did some of the checks myself (and submitted the paperwork to the Manager), I have no problems writing a statement to this effect. However, I am concerned about this being seen as biased. I have previously asked the guys on my team, but they are afraid of losing their jobs (this company will get rid of someone at the drop of a hat). I may be able to get access to the security log, which confirms the jobs were done (we have to log everything in it, including all jobs undertaken), but I'm not sure whether the company will comply with that request