Dismissed for Gross Misconduct *** RESOLVED ***

[sagaw]

Hi

 

Looking for advice for a family member that was dismmised for gross misconduct on Friday.

 

He works in a retail shop and has done for 10 years no previous blemishes on work record.

 

He was asked by area manager to re-locate to another store in order to help out in the run up to xmas, the manager at this store has history with my family member and the area manager knows this history, against his better judgement he agreed as he thought declining this offer may jepodize his future career prospects.

 

He had been at the new store 2 weeks and had already encountered several issues with the manager, he did seek out advice from his previous manager after only 4 days.

 

Anyway, he aattended the store one morning 6.30am to find a chiller cabinet was faulty after attempting to fix the fault he was unable to so he felt he had no option but to destroy the contents, he documented fully what was wasted. His manager attended work and reported him for not following procedure, he was suspended whilst investigation took place.

 

He attended disciplinary on friday and was sacked! They state he dhould have used a manual probe to check temperature of products even though on feel alone they were warm and soft.

 

He mitigated that he had not be shown where this was kept or infact had any kind of induction to the store but it was felt it was gross misconduct as the amount of wastage was £2000.

 

He did state that he attempted to call the area manager (whose phone was not working) and the company helpline (no answer) this was felt as not relevant?

 

H was also not given security codes for the store and alarm systems on chiller caninets as the store manager did not want him to have them, even though he was responsible for opening and locking the store, he was given someone esles codes to use?

 

Does he have grounds for appeal, any advice welcomed?

 

Thanks in advance

Edited November 25, 2012 by honeybee13
Editing in some spacing for easier reading.

[postggj]

first thing would be to appeal in writing the dismissal. you will only have a limited time to do this, average is 5 days

 

how soon after the fact finding interview in which you were suspended did you have the formal disciplinary hearing

 

were you given in advance all notes, disciplinary procedure, etc at least 48 hours before the disciplinary meeting

 

were you advised that the disciplinary meeting may result in dismissal in writing

 

were you advised that you can be accompanied at the meeting by a rep or fellow worker

[BankFodder]

Yes it sounds to me as if he has been treated very harshly.

 

Let me say that reinstatement is very rare - and he will be looking at receiving damages.

 

He had better start by getting his tribunal ET1 form and fill it out and begin the process of claiming unfair dismissal.

 

He should then start off making a very detailed account of what has happened - and also all of the previous incidents with this particular manager.

 

He should revisit the statement regularly as new things come to mind. It is very important to do this.

If he knows anyone who might give evidence on his behalf, then he should get a statement from them too.

 

If he gets on well with the area manager - then he ought to go and speak with him and see if he is willing to intervene. However, once there is a bad relationship in a company it takes a lot of effort to get back into a stable and safe routine.

 

Once again, reinstatement is very unlikely.

 

However, there could be a chance here - if the problem is with a shop manager in a particular shop and if your friend has lots other places he could be working. In these kinds of circumstance a tribunal might be persuaded to order reinstatement.

[sagaw]

Hi, thanks for your reply in asswer to ur questions:

 

Not recieved letter as yet, so have not sent any appeal letter, what kind of things do u write?

 

The meeting was held 2 weeks after suspended

 

Was given notes from investigation but no disciplinary procedure

 

Was advised in writing and that could be accompanied

 

Thanks again

[postggj]

if you were dismissed the employer has to tell you about appealing the decision

 

send a letter into HR saying you were not given the opportunity to appeal the dismissal and can they arrange an appeal hearing

[stu007]

Hi

 

I have to agree with Squaddie

 

Write to HR and ask for clarification of your Right to Appeal as you were never notified of this at the end of the disciplinary Hearing nor have you been notified of your rights in writing.

[sagaw]

Hi,

 

Sorry for the confusion, i wasnt clear in my original post, he was told he has a right to appeal, but he has not received the letter confirming the dismissal as yet, i was just querying if people here thought he has a good case to appeal and if so, what kind of things do u write in the appeal letter?

 

Thanks for you replies in advance

[Sidewinder]

It is always worth an appeal. This would have to be heard by a more senior (or at least different) person to the one making the original decision. The grounds would have to be a lack of training in cold chain procedures and that the actions taken were due to a lack of available senior management to refer to on the day in question. Furthermore the employee believes that insufficient weight was given to a previously unblemished work history, and that he was, he felt, using initiative in the interests of public health as the chiller was clearly not working on arrival at the store and it could easily be determined that it had not been for some time.

 

Read the company's disciplinary policy thoroughly - he should be provided with a copy on request. Look for holes in the way that the procedure has been applied (as suggested above) - stages, investigation, right to be accompanied (was a Union consulted for example). I know of one retail company whose procedures are habitually deficient to the point that decisions are overturned on appeal.

[mariefab]

What kind of food products were in the chiller?

[dontgetshafted]

When he was invited to his hearing, did it say in his letter that it may lead to dismissal? It should have.Also, why does the amount make a differnence? If it was £200 then would he have been sacked?

[sagaw]

Hi,Thanks so much for taking the time and offer help and advice. In answer to your questions the chiller contained cheese and i am not sure if the amount would have been lower he would have been sacked or even disciplined, but it was mentioned at his hearing that the amount was substantial several times. Even though he said sorry during the hearing and that he should have spent time looking for the probe (whilst he was being sacked, the Manager stated that he showed no regard or remorse) which he clearly did.

[mariefab]

When was the last time, before he discovered the faulty chiller, that the temperature of the chiller/cheese was checked and/or recorded?

Was the cheese warm and soft at 6:30?

Does it state that the cheese was warm and soft in the investigation notes?

How much time passed between his discovering the problem and disposing of the cheese?

Was there another working chiller available that he could have put the cheese in?

What type of cheese was it? (i.e. brie, stilton etc.-high risk or cheddar-medium risk)

What procedures do they claim he should have followed?

[honeybee13]

Hello guys.

 

I was wondering if there is ever an insurance that would cover an event where a fridge went wrong?

 

My best, HB

[sagaw]

When was the last time, before he discovered the faulty chiller, that the temperature of the chiller/cheese was checked and/or recorded?

Was the cheese warm and soft at 6:30?

Does it state that the cheese was warm and soft in the investigation notes?

How much time passed between his discovering the problem and disposing of the cheese?

Was there another working chiller available that he could have put the cheese in?

What type of cheese was it? (i.e. brie, stilton etc.-high risk or cheddar-medium risk)

What procedures do they claim he should have followed?

 

Hi

Thanks for your reply, in answer to your questions:

 

The chiller had electronic temp that showed 14 degrees and the alarm was sounding on it, on feeling the cheese was warm and soft at the front middle and back of the chiller, this is mentioned in the notes but nobody else who was there felt the cheese so could not independently verify this.

 

There was roughly 20 minutes in discovering and starting to empty and dispose of it.

 

There was another chiller that could have been used and this was brought up by the manager at the hearing. It was various types of assorted cheese.

 

They claim he should have switched off the alarm (although he had no code to access the alarm system), probed the cheese with a battery hand held machine (which he didn't know where this was kept), attempted to call store manager (she was supposed to have been there at 6.30am, he presumed she was on route, so he did not call), check process for alarm calls on computer ( he had not been given password for computer), call another store for advice, all in all they said he wilfully destroyed the cheese, when he was trying to ensure it was not purchased and consumed by member of public (they say the store did not open for another hour, so had plenty of time before he needed to sort the issue) even though he had delivery of frozen food to sort and all other day to day issues before store opened.

 

Any help greatly appreciated thanks

[sagaw]

Hello guys.

 

I was wondering if there is ever an insurance that would cover an event where a fridge went wrong?

 

My best, HB

 

Hi

 

This is a major high street store so they must have insurance against this type of event

[Sidewinder]

There is indeed (either the store's insurance, or indemnified by the chiller manufacturer), but as with all such things, there would need to be proof that the correct procedures were followed and documented, and that the need to waste the food was genuine. This, I would suspect is at the root of the problem, in that procedure was not followed and that the company would end up footing the bill!

 

I see this situation on an almost daily basis and procedure is paramount! Failure to account for waste correctly can result in stock losses and a £2k loss could blow the waste budget for a considerable period - and in some cases stock bonuses for staff.

 

EDIT - Looking at the outline of events, it is fairly clear that there HAS been a lack of judgement or common sense shown by the employee concerned, but equally there have been barriers which prevented certain actions.

 

First and foremost, the decision to waste should have been made by the Manager whose store this was, and I daresay that if the stock had been put on one side to await her arrival then this situation would have been avoided. Being cheese, refrigeration is not AS critical in the short term as for meat or fish, and having already been at room temperature for an unknown period, the stock could have been moved to another chiller - perhaps in a box or covered to prevent purchase until a decision had been made. In either event the stock should not have been destroyed until authorised.

 

Nevertheless, dismissal with the degree of mitigation here does seem harsh, and I reiterate that an appeal is essential on grounds that this was a misjudgement with a number of mitigating circumstances. Of course it could be argued that with 10 years service and training in basic food hygiene and company procedures in general this was at the upper end of the scale, but the act does not appear to have been wilful.

[stu007]

Hi

 

Something i would suggest is writing and asking for a copy of your personal Training Record.

 

(the reason I say this is were you actually correctly trained and record on recorded of the procedure for the disposal of fridged item if fridge is faulty)

 

This is only a suggestion as if you were not trained and their is no record showing this training then how can they justify there action

 

Also if they are saying you should have used a probe to check the temperature of the food - how are you possibly meant to do this on food that is factory sealed without beaking that seal entering the probe - do you see what i am saying so how would they be able to sell that food with the seal breached

 

just my thoughts

Edited November 26, 2012 by stu007

[sagaw]

There is indeed (either the store's insurance, or indemnified by the chiller manufacturer), but as with all such things, there would need to be proof that the correct procedures were followed and documented, and that the need to waste the food was genuine. This, I would suspect is at the root of the problem, in that procedure was not followed and that the company would end up footing the bill!

 

I see this situation on an almost daily basis and procedure is paramount! Failure to account for waste correctly can result in stock losses and a £2k loss could blow the waste budget for a considerable period - and in some cases stock bonuses for staff.

 

EDIT - Looking at the outline of events, it is fairly clear that there HAS been a lack of judgement or common sense shown by the employee concerned, but equally there have been barriers which prevented certain actions.

 

First and foremost, the decision to waste should have been made by the Manager whose store this was, and I daresay that if the stock had been put on one side to await her arrival then this situation would have been avoided. Being cheese, refrigeration is not AS critical in the short term as for meat or fish, and having already been at room temperature for an unknown period, the stock could have been moved to another chiller - perhaps in a box or covered to prevent purchase until a decision had been made. In either event the stock should not have been destroyed until authorised.

 

Nevertheless, dismissal with the degree of mitigation here does seem harsh, and I reiterate that an appeal is essential on grounds that this was a misjudgement with a number of mitigating circumstances. Of course it could be argued that with 10 years service and training in basic food hygiene and company procedures in general this was at the upper end of the scale, but the act does not appear to have been wilful.

 

Hi sidewinder,

 

I totally agree with all your comments, thanks, still awaiting the letter to arrive then will draft an appeal letter and post.

[erialc19]

Just wanted to update you all that the appeal went extremely well, my brother was re-instated and re-imbursed for lost wages! The Manager he had trouble with has now "suddenly" left the company and my brother has been selected for promotion - so there really are happy endings in some cases.

 

Thanks for all your help and support with this it was invaluable reading some of these posts :-):-)

[altobelli]

Fantastic news - congratulations!

[stu007]

Hi

 

That is great news and thank you for popping back and updating us.

 

I am glad CAG and the Caggers were able to be of assistance and remember we are here if you ever need any other advice.

 

Well Done

 

Have amended your Thread Title

Edited March 21, 2013 by stu007