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Unfair or Constructive Dismissal - Do I have a Case?


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Hi hope someone can help as I have a big problem going on with my employer (possibly former employer very soon).

 

I was dismissed from my workplace of almost 3 years yesterday at a disciplinary hearing.

 

To give you an idea of the entire story I will list the events as they happened.

 

Employed for 3 years and have never missed a single shift. There are few people more flexible in accepting short term changes to rotas and I was promoted to a more challenging role last year after being asked to apply based on my performance over the previous two years.

 

It all started when I was caught red handed with my mobile phone in the workplace which is a complete no no and received a verbal warning. I was completely in the wrong and fully accepted my punishment. One problem which arose was the fact that the warning was issued by a supervisor while the manager was on holiday and the punishment should have been in the managers eyes a written warning but nothing she could do as the process was complete by the time he returned.

 

About 2 months later I was reported by the H&S official for driving a forklift with an out of date safety check ticket. I was sent home and returned for a hearing the next morning. They were determined to throw the book at me however I managed to clearly prove I had done the checks on the day and simply dated the signature incorrectly. I dated it wrongly for the previous day, a day which I was not on shift. I was told no further action would be taken and there was no case to answer. It was a simple administrative error on my part.

 

Around 1 month ago I was called to the managers office and asked for my version of events regarding stepping off a moving forklift (stand on type). The forklift is fitted with a dead man brake and would continue no more than 1 foot forward given the speed it was allegedly travelling at. This was allegedly witnessed by the same H&S official who claimed when he confronted me I replied with a tirade of abuse and basicly told him to F Off. I was not in the stated area on a forlift at any time within hours of the alleged incident and there were no witnesses to either the incident or the alleged communication between myself and the H&S official. My defence was simple and straightforward. It was not me, I was not there and I know nothing of the whole thing.

 

I was instantly suspended pending the investigation and when it came to the hearing I was told there were 8 individuals who saw me on a truck at some point. The vast majority of these did not want to sign any statement.

 

I was given a final written warning despite my protest. I had the right of appeal but I was strongly warned against it by the union official and other trusted colleagues as the punishment could increase and see me dismissed. I reluctantly took their advise and vowed to keep my nose clean and get the head down. One point I complained about throughout the hearing was bringing up the forklift ticket incident where I had already proved and had it accepted being presented at the hearing. I told them this should not be part of the hearing but it made no difference.

Last week I was sat on a forklift waiting to use an item of machinery. I was travelling at less than 2 mph when I made a two handed gesture to my colleague encouraging him to hurry up as I was under pressure to maintain supply to a machine. This two handed gesture was witnessed by a shift supervisor who pulled me up at the time for driving all be it at this crawl of a speed with no danger of striking anything without at least one hand on the steering wheel. He assured me it was just a verbal warning between him and me and would go no further. I was pulled in later that day and suspended on the back of the incident.

 

My hearing was yesterday and once again the forklift ticket incident was brought into the proceedings and again I stated it should not have been. I was told again that I was in breach of H&S and the outcome was dismissal.

 

I still have an appeal process to go though but I feel as if I am very much being victimised here.

 

If the appeal fails can anyone see any grounds for taking this through a tribunal. The alleged incident with the H&S which resulted in the final written warning had no witnesses and was a simple case of my word against theirs.

 

Any help would be great as it feels like my world is falling apart.

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Thanks for the reply raydetinu.

 

I am not a member of the union however I have taken lots of advice and used the union rep as an independent witness at all stages.

 

His advice at the last stage was to with hold any appeal and look to move on keeping my nose clean. In hindsight this was probably the wrong thing to do as I find myself in the current situation.

 

This comes down to my word against the H&S reps and they believed him. No witnesses, no signed statements nothing to back up either side of the story.

 

I think I would have a strong case but was having never been in a situation like this I was looking for others opinion on the strength of my case. I was going to wait till after the appeal before contacting ACAS.

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I'd say you weren't in control of that vehicle and that you should have known better after being checked on for health and safety beforehand.

 

Where I work it'd be a dismissal, no argument about it.

Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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I'd say you weren't in control of that vehicle and that you should have known better after being checked on for health and safety beforehand.

 

Where I work it'd be a dismissal, no argument about it.

 

Despite the vehicle travelling at less than a slow walking pace in a straight line with no obstructions within at least 4 metres of the FLT? I would expect it would be more difficult to prove the vehicle was out of control. Remember the shift supervisor who witnessed this saw it as no more than a fly in my ear which was accepted.

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Despite the vehicle travelling at less than a slow walking pace in a straight line with no obstructions within at least 4 metres of the FLT? I would expect it would be more difficult to prove the vehicle was out of control. Remember the shift supervisor who witnessed this saw it as no more than a fly in my ear which was accepted.

 

 

Y'know, I've no time for this arguement. It's a "but I only had two pints" arguement. Call the HSE and ask if they approve.

Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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You asked for an opinion and you got one!

 

I was kind of hoping for a pointer regards the whole situation as opposed to the one point.

 

My main concern is over the way I was moved from verbal warning to final written warning over an incident that had no witnesses whatsoever. Essentially that placed me at the edge of the cliff when last weeks incident pushed me over.

 

Last weeks incident on reflection I have no argument about. I have already admitted to driving without any hands on the wheel - a breach albeit the risk was minimal but a breach nevertheless.

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As you have described the events, it does sound a bit harsh! however have they followed procedure as set out in the contract regarding discipline and actions etc.

If you think you have been treated unfairly then speak to ACAS, then consider a tribunal hearing.

It is difficult to advise any further as there would be no point.

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Hi and sorry to hear the bad news.

 

It seems from your chronology that you were on a FFWW when this happened.

 

The question will be can you 're-open' that, because if not a further (alleged) H & S breach may be enough for a cumulative warnings dismissal.

 

As to a recent case on this issue, and whether an employer's reliance on a written warning may be challenged in an unfair dismissal claim?

 

It was held that only if it was issued in bad faith or manifestly inappropriate,by the Court of Appeal in Davies v Sandwell.

 

Just google the case name.

 

Che

...................................................................... [FONT=Comic Sans MS]Please post on a thread before sending a PM. My opinion's are not expressed as agent or representative of The Consumer Action Group. Always seek professional advice from a qualified legal adviser before acting. If I have helped you please feel free to click on the black star.[/FONT] [FONT=Comic Sans MS] I am sorry that work means I don't get into the Employment Forum as often as I would like these days, but nonetheless I'll try to pop in when I can.[/FONT] [FONT=Arial Black][FONT=Comic Sans MS][COLOR=Red]'Venceremos' :wink:[/COLOR][/FONT][/FONT]

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In Davies vs Sandwell the ET failed because the claimant had not pursued her appeal of the FWW... much as here

Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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The incidents do sound quite minor the way you describe them in your post. However it seems the employer does not see it that way. Four H&S warnings in as many months is much too many.

 

Based on your post it sounds to me like you have been treated harshly. Probably not harshly enough to merit an Employment Tribunal claim, but harshly enough to make an appeal worthwhile. If it was me I would try to appeal while searching for another job.

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