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Gross misconduct, please help


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Hi all,

 

Hoping you can give some general advice please, i am posting on behalf of my husband who is facing a disciplinary for gross misconduct.

 

Basically, he has made some very stupid mistakes, he works for car hire company and had been accused of falsifying records on three occasions, what happened is that he is being pressured to sell upgrades, however they are not allowed to add these to certain cases, once was a genuine mistake and the customer complained which he then apologised and removed, the second his colleague took the booking but did not put it on the system so when the client arrived it had to be put on then looking like the wrong circumstances for an upgrade but this was actually correct, the third well he’s just an idiot it just happened.

 

The managers have been discussing this between themselves since the 23rd of February and on Tuesday this week he was informally told by his line manager this had been discovered and something was being done, he went into work as usual for his line manager to say I’ve got an email from area manager your being suspended with pay please leave.(by the way they don’t have a private office so this was all in corridors)

 

He received a letter yesterday with a stating a hearing on Tuesday, providing the evidence also, however this is first detailed info he has had so only gives him one day to seek advice can we ask for this to postponed to allow him time to do this?

There are some mitigating circumstances, he is suffering from depression due to serious circumstances at home and how work has been for the last year I have convinced him to seek help for this finally, he has lost all interest in life and just doesn’t care about anything anymore, he’s operating on autopilot to try to hide his feelings,

 

He has worked for this company for 11 years and never before done anything wrong and has gone above and beyond his duties since moving to this office in 08, his manager doesn’t know the computer system so he does most of her work for her and then when his colleague left he had to do both roles plus covering her arse, they expected the same level of productivity despite half the workforce. They then started imposing sales targets which has never been the case before. Whilst they were short staff the manager asked him to work every Saturday as she didn’t want to do them and offered in time in lieu as well on the sligh. When the staff member started he had to train them as well even though this was the managers duty.

 

So in short he has been put upon to do the job of three people and pressured to sell and threatened with his job if he doesn’t, he is just so stressed and the mistakes are result of that.

 

His manager has lied to him telling him that she and his colleague corroborate the first two, but when we read the statement she has told a totally different story, He understands and accepts the mistakes are ultimately his fault but feels that gross misconduct and instant dismissal is a bit harsh given the circumstances.

 

Any advice or opinions on how we can proceed with this would extremely appreciated.

Thank you all in advance.

Rach.

p.s sorry for the super long post

The whole world is made of faith, trust and pixie dust :p

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Hello again Rach. I saw your post on the benefits forum too. I'm sorry you're having this problem.

 

Some of the guys here are good at advising what to say at this type of hearing and also whether you should ask for it to be delayed.

 

Has your OH all the accusations and witness statements, would you say?

 

My best, HB

Illegitimi non carborundum

 

 

 

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hi, honeybee

 

they sent him all the evidence in the letter he got yesterday, however there is no statement from his colleague just his manager who states what she has said,

i would have thought given the circumstances she would have had to of given her own, particularly as the managers differs from what was told to OH.

 

Thank you for kind words

rach

The whole world is made of faith, trust and pixie dust :p

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Hi

 

Has your other half been informed in the letter that they can either take a union representative or work colleauge?

 

Did they provide a copy of the companies Disciplinary & Grievance procedure?

 

Have they stated the exact reason for the meeting?

 

Also have a look at the ACAS Website: www.acas.org.uk

 

As this also seems performance related

 

When the first error occured was he giving and training in correct procedure?

Ask for a copy of Training Policy/Procedure.

 

As he has 1 day to prepare yes he can ask for a delay in the hearing due to the following:

 

* Due to recieving the letter on Sat 17th Mar 2012 with a hearing date of Tues 20th Mar 2012 therefore only having one day to prepare for this hearing is impossible and therefore would like to request an extention to the hearing date of 7days to prepare for this hearing.

 

* This is so that I may have time to read the documents already forwarded and request any further documentation that may be required.

* To prepare a list of any witnesses i may wish to be present for the hearing. (Remeber he has the right to request witnesses be present and during the hearing given the opportunity to ask question).

* To be able to seek appropriate advice and if needed representation.

 

This may be of some use but please bear in mind this is only a rough guide and is not set in stone but only a guide:

 

 

Ensure that all the witnesses are available. They do not need to be present at the hearing but should be available if called.

 

Introduce all attendees of the meeting and advise of the rules of conduct (e.g. no abusiveness, etc).

 

Inform employee of his / her rights.

 

State the reason for the Hearing clearly.

 

Ask the employee if he/she admits or denies the allegations. (only if applicable to hearing)

 

Explain the procedure for the hearing.

 

Ask the complainant to state their case.

 

The employee / representative and chairperson / panel may cross-examine the complainant.

 

Call in the first witness to give evidence. (only if applicable to hearing)

 

Witnesses may be cross-examined by complainant, chairman / panel and employee / representative.

 

Other witnesses for complainant to be called in separately. Use the same procedure as above.

 

Employee to state his / her case or his / her written statement should be read out for all to hear (if applicable by interpreter if necessary).

 

Complainant, chairperson / panel and representative may cross-examine employee.

 

Employee’s witness can then give evidence and may be cross-examined by employee, representative, complainant and chairperson / panel.

 

Close hearing, evaluate evidence and decide if employee is guilty or not. Recall witness if necessary should the evidence not be clear.

 

Reconvene meeting and advise employee of decision and reasons therefore.

 

If guilty, check employee’s disciplinary and service records. If necessary take a recess and contact the staff representative.

Edited by stu007

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Maybe I am being a little harsh, but much of what you say is mitigating circumstances (long service, doing all the extra tasks) will not taken into account. Certainly line manager inneptidude will not have witness statements o accompany the paprwork.

 

The depression - I am not sure how you would stand if ypu have not told them previously - could also fall into that camp. What I think your saying is that he has given discounts, upgrades when not allowed to. Certainly in a large volume business as car hire, this appears to be very harsh. Do you have multiple examples where doing these things were done and sanctioned - thereby appearing that yout husband was doing the right thing / normal thing?

 

Finally - who were the benficiaries - friends or random customers?

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Just a question how far apart were these instances, when was the first one and were they all discovered at once by the management or 1 at a time, was it the result of a complaint or audit that they came to light, have the added upgrades caused problems for the customers?

If I have been of any help, please click on my star and let me know, thank you.

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Hi everyone, will try to answer some of your questions,

 

Also forgot to mention that they are accusing him of theft on the basis that he would have earned about £9.00 commission on them, but actually wont because it was the beginning of this month so hasnt been paid yet. and with regards to putting the hearing back we don't think this is an option as they sent an email on thursday pm, however it only came through to us last night, weird yes but true.

 

I have looked into the dates and can now see how this could have happened the first one happened on the 23rd feb genuine mistake and was refunded the others were 5th and 6th march, that week of the second two he shouldn't have been there he should have been off sick after we suffered a trauma, but his manager was on holiday and it would have left the trainee alone, ironically he chose to go in to try to protect his job as i cant work at the moment. so i can see his head will have been all over the place. ,

 

stu007

No they didn't include a copy of the disciplinary policy/procedure

when he was first pulled up for it he was just told dont do it again that was it

everything else seems done right so far

 

JonD,

 

your not being harsh just realistic we hope they will take into account the fact that hes been expected to do the work of two people for the last 12 months and that at the time it happened they had not provided cover for the manager and he was expected, never asked or offered any training or enhancement in pay to run the branch.

its not a case of discounts its upgrade charges that only apply to prebooked customers applied to walk ins, but only one truly falls under this, as the first was refunded the second his colleague failed to put on the system.

 

assisted Blonde,

one on the 23rd noticed by customer and removed immediatly, one on the 5th and one on the 6th of march, no customer complaints, we dont know how they picked up on these.

 

looking at the paperwork they can only prove he added them they cannot prove any intent to deceive for financial gain that's just their opinion.

surely a decision should be made on what facts are available not how they interpret the facts, but my OH says hes not surprised they're taking it this far because because there has been rumor that they want rid because he is paid more than 4k more than others in his role, because he originally accepted the post of assistant manager, started the job with the old one who then gave back word, so they had to put in him in lower position and negotiate pay. then when 3 years later the assistant manager left they just pilled his workload on OH as well as his own, so its no wonder he cant perform to the highest standard hes trying to do two jobs plus cover the managers arse.

 

sorry went into a bit of rant there

anyway

thank you all any further advice still gratefully accepted, you have been very helpful

 

Rach

The whole world is made of faith, trust and pixie dust :p

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Just looked at the commission figures again i got them mixed up it was grand total of 83pence, so one of there major reasoning's of gross misconduct is the theft of 83p by wrongfully gaining commission, although he will never actually get it.

 

seems ridiculous so much fuss for 83p

 

also i wanted to ask, if the evidence only proves the upgrades added, but there perusing dishonesty, and breech of trust and confidence, is it up to them to prove it was done with intention of defrauding or up to OH to prove it wasn't were putting a statement together now to do this.

 

but it all seems to hang on the intent, which they cant prove, were kind of worried this is going to come down to a your word against mine situation,

 

thanks again

The whole world is made of faith, trust and pixie dust :p

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  • 2 weeks later...

hi all

 

a quick update really

OH was indeed dismissed for theft, dishonesty and breech of trust and confidence.

 

the manager has denied and disagreed with everything he has said, however she has made a few mistakes with timelines and training, they also rely upon a statement that we have not seen and do not believe to exist, its just a case of the managers says the colleague says blah blah.

so as we were afraid it had come down to he said she said situation which i imagine is hard to fight due to lack of hard evidence.

 

we saw a solicitor yesterday who has said they feel it has a case for a tribunal, its not a clear cut case and both parties have week points. but because of the discrepancies in the info provided, added sales pressure, unreasonable output expectancy along with clean record, long service and personal circumstances at the time there is a good claim that dismissal was unreasonable and a written warning really should have been issued first.

 

i do remember them saying something about procedural mistakes as well, but i think i may have misheard or misunderstood one bit as they said that the investigation and the disciplinary should not be done by the same person, but i was under the impression that when it came to gross misconduct that procedural law did not have to be followed to the letter.

 

so can anyone answer if ive got the wrong end of the stick here, and yes we are appealing im working on it now but we don't expect any change of heart though

 

thanks alot

rach

The whole world is made of faith, trust and pixie dust :p

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Hi,

 

yes, appeal, but when you go into that room have all your facts straight, have a list of questions and points you want answered.

 

for example, how much he allegedly stole, if it was theft why are the police not involved?

What exactly was his dishonesty

How after x number of years do they think they cannot trust him any more

Who was the statement from? (you have a right under the data protection act to see it) and it should have been disclosed at the disciplinary meeting.

 

other questions, were notes taken and do you have a copy? was he offered the chance to have a witness? was the charges and evidence disclosed before the meeting if they were not how was he supposed to prepare a defence?? was he given adequate notice of the hearing to prepare a defence?

 

err there is loads more i guess, but i cant think of other things to ask them!

I am not a legal professional or adviser, I am however a Law Student and very well versed areas of Employment Law. Anything I write here is purely from my own experiences! If I help, then click the star to add to my reputation :)

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Your solicitor is right about the procedure and it should have been done by separate people in an ideal world. It's actually more important in a gross misconduct situation to follow a fair procedure, as a lack of fair process can arguably in itself result in an unfair dismissal.

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thanks for the replies

 

Looking at the letter the appeal will carried out at head office so all in writing no meeting will happen, which we are not happy about. the original meeting was recorded but we were not provided with a transcript in the outcome letter so are requesting one in the appeal letter, .very politely i might add,should they have provided one?

 

trying to keep things as polite as cooperative as possible so it cant rebound on us well OH, i say us because im the one doing the legwork OH is just no good at sticking up fro himself, thats why he never raised a formal grievance as i pleaded with him to do many a time at being left to run the branch without being asked, there comeback is well you've done it for last year so its not relevant to the case but it is as we are stating that they have over worked and over pressurised him.

 

with regards to theft they have made the following statement.

 

"in conclusion i believe you have been dishonest, you would have gained financially form the upgrades if this had not been discovered by the manager and this would have been classed as theft from the company, deliberately falsified company records and you have irreparably breached the trust and confidence between you and the company. you were therefore dismissed for gross misconduct as a result."

 

The amount of commission would have been 83p and they are still claiming theft as one of the reasons although the above statement does not make this clear, does anyone else read it this way. so im guessing the reason that no criminal activity has been reported is that no theft actually took place in the end, so are they within their rights to still state theft? shouldn't it be something like potential intent steal or misappropriate funds.

 

also the mystery statement we think arises from the fact that in the meeting OH asked why a statement had not been collected from the colleague involved given that the allegations are so serious, i do not find it acceptable that the manager can paraphrase her opinion, so they came back speaking of the statement so they may have collected one since but failed to produce a copy to OH, or their just making it up.

 

it would have been possible to have the investigation and meeting done by separate people as they are a national company which is turn part of a global company, an alternative branch manager carried out the investigation and meeting as someone impartial so you'd have thought they'd have gone the whole hog?

 

they cannot prove that any malicious intent was there, and i promise there was not just a really bad fortnight where OH should have been off sick and just stupidly made 2 mistakes, not denying that have tried to be sincere and profusely apologise, we also like to know if they have refunded the customers because we dont think so, if it was bad why haven't they done this? can we ask this or it non of our business.

 

Once again your help is gratefully appreciated it has helped so much thank you

The whole world is made of faith, trust and pixie dust :p

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  • 3 weeks later...

Hi guys

 

if you made it all way down here, thanks already.

 

A new situation has occurred and i could really use some advice on how to proceed.

 

basically we asked for a transcript of the disciplinary meeting and they sent use a copy of the recording, the person conducting the interview didnt turn the recording device off properly so there's an extra 15 mins on the ends, me being me went through it to see it there was any reason for this and we found around 5 minutes of a conversation between the person conducting it and OH's manager.

 

it starts off with the manager coming in and saying she ignored OH because she didnt want to end up 'starting with him', and they generally gossiped about him for a bit. the person who conducted / interviewed OH went on to say

"well i prob shouldn't tell you this but his mitigating circumstances are ......." and detailed the very personal traumatic experience we have been through, she told the manager that he says he seeing a doc about depression, she cant get through this sentence for laughing she then syas hell end up on the sick still laughing her head off.

then she says he says he hasnt done anything wrong, but that is not the case in each allegation he has admitted varying levels of fault and apologized and explained he never claimed to be totally innocent.

 

throughout the meeting she cuts him down whenever he tries to give an explanation, after he read his statement she said most of thats a different issue and repeatedly asked the two questions he had been asked about 20 times now, her tone was appaling its clear she had no interest in what he had to say.

 

but that's not whats bothering me its laughing at his depression, he opened up and told her horrific things he has to deal with and she just laughs i am sooooo mad and devastated hes been treated like that, OH is just upset, he says that why he never wanted to tell anyone.

 

we obviously have a copy of this, we just don't know what to do about it, surely there is something we can do to make them accountable for their actions, its also obvious HR never listened to hearing before making a decision as i am pretty sure they would have edited that before sending us a copy, i know they shouldn't but it would just be easy to chop it off the end of the hearing.

 

so any ideas guys, appeal hearing is tomorrow,

 

thanks for reading

rach

The whole world is made of faith, trust and pixie dust :p

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Not really sure what to say on the latest development and not sure if there is any recourse, I would hope so as that is just appalling.

 

Hopefully someone can pop back soon and comment on it.

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I'd play that part of the tape at the appeal, sit back and watch the colour drain from their faces.

 

No doubt a compromise agreement would be on the table by the end of the day ;)

 

Depends what you want though, others may suggest keeping your powder dry - I'd be too impatient and want to have some fun with it.

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Hi Guys, thanks for the replies,

 

we kinda did something in-between the suggestions, OH suggested playing it but we decided to make them sweat a bit, knowing that they would have to go back to head office to hear it fully.

 

so at the end of the hearing they asked do you want to add anything so OH talked about the gossiping and said he was disgusted to hear people such as management who should be well versed in the DDA or EA laughing at a recognized mental health condition, and that was it, OH says the look on his face was a picture the fake smile became somber very quickly.

 

after the the recording was stopped they pressed OH for more info on what said, and he said just the right thing,. "well you have to listen to it yourself and see what you think" and left it at that.

 

as angry as i am at least we've got evidence of this as im sure in many cases things like this happen but no one ever finds out!!!

 

just waiting for their response now i expect early next week, will let you know what they say

thanks again

rach

The whole world is made of faith, trust and pixie dust :p

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I would have loved to be a fly on the wall. I'd expect that will have ruined a few people's weekends!

 

Sounds like it will have the desired effect. Your OH is now in the driving seat!

 

Keep us posted.

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Hiya,

 

BSC, id have loved to be a fly on the wall too, i can tell you it would have made my year to see that.

 

OH got a letter today asking for permission for GP report to help determine the outcome, and they expect to have it by the 26/04 are they kidding, ive had to have a lot of GP reports and they take about three weeks to be done so they'll have to wait, and unfortunately so will we. but as luck would have OH has a GP appointment for a review today so he can talk to GP and tell him what they need to know straight away.

 

now the waiting game begins,

keep you posted

rach

The whole world is made of faith, trust and pixie dust :p

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  • 1 month later...

Hi All,

 

Not much to update really, the GP report came back very good stating the personal reasons and explicitly claiming the work conditions were a direct factor,

so now were just waiting on their response and final decision on the appeal,

 

however the time has crept up to ET final claim date i was wondering if you could please advise me if i need a solicitor to fill the claim form in, would it make a big difference?

 

if so we need to appoint a no win no fee solicitor but we still have hope this can be resolved without an ET anyone got any idea what would happen re charges if we settled, would they just take the fees as arranged for ET.

 

Also whats your opinion on making an unfair dismissal claim and / with disability discrimination on the grounds that they the evidence shows they wernt taking him seriously due to his MH probs and it clearly impacted upon the way they reached their decision, or influenced their decision and reactions to OH.

 

as always any advice is always welcome, we tried to go to the free clinic but circumstances have prevented it and this week it was closed, only found out after a2 hr trip there!

 

cheers

rach

The whole world is made of faith, trust and pixie dust :p

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Updating again!!

 

We finally received the appeal outcome and they have upheld their decision, so ET1 has gone in today.

 

what i find unbelievable is that they have not taken the conversation recorded into account at all, they say it is not relevant to the dismissal, not even an apology from them.

 

they said they would look into it separably but who knows what they mean by that, im guessing actually nothing i don't expect to hear from them again

 

i would have thought that a letter of apology from those involved was the very least they could do, just shows what kind of company we are dealing with here.

 

saw the solicitor again who checked over the ET1 and thinks its a good case so that's good at least.

 

will continue to update

rach.

The whole world is made of faith, trust and pixie dust :p

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I'm wondering whether there are elements of Disability Discrimination here? Your OH has been suffering horrendously with depression, which may be classed as a disability. The 15 minute over-run on the interview tape proves that they knew about it. What reasonable adjustments did they make to your OH's work place or working conditions, if any? The managers attitude towards your OH's illness seems quite appalling and I am wondering whether there is an element of discrimination/ harassment in there? One to discuss with your solicitor and I am sure there will be people on here that can advise you better, but it may be an additional avenue to chase them down. You should be able to amend your ET1 but perhaps you should send them a questionnaire first? Again, one for the more learned on here to advise on perhaps...

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Hi digby,

 

we have claimed for disability discrimination on the ET1 and it has been accepted by the tribunal, got a letter from ACAS officer introducing themselves today, were hoping for a decent compromise agreement we'd rather not go to tribunal if at all poss but given their previous responses i doubt they will entertain the fact of a comp agreement.

 

it's about time we started looking for a decent solicitor we have been using a free service so far, and although they've been fab they cannot actually represent us, but me thinks a no win no fee will have to be they way forward.

 

cheers for you help digby, its a least a little reassuring to see that others view it the way we do!!!

The whole world is made of faith, trust and pixie dust :p

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