Gross MisConduct - Suspended today, please help.

[PashConscious]

Hi All,

 

Apologies for the long post but I would like to convey all the details.

 

I have been with my employer (a major car company) since Jun 2011. Recently I attended an international 3-day training course to showcase some of the new vehicle. This is an event that has been held annually for over 15 years by the company but the first time anyone from my department has been invited.

 

To cut a long story short, this was a driving event and I don't drive. For all delegates there was a mandatory breathalyzer test for anyone driving in the morning, though there were mixed messages as to whether non-drivers where to be breathlyzed. My director told us that anyone who fails this test will be subject to dismissal.

 

Upon arriving at the location, a barcode tag to verify the persons license and information was given. As a non-driver my card was hole-punched so it could not be read by any of the staff organising the driving of the vehicles. I asked the person stamping the card if I was to be breathalyzed and he laughed and say no, because I don't drive.

 

Rather than take this as read, I then asked the trainer for my group if this were true and he said yes I would, so I went with this answer.

 

The night before were lunch was served there was a themed party with an open bar. I have never been breahtlyzed before and so was very concerned about this but on the same vein, I wanted to enjoy the party and so I had a few drinks. Prior to this, I had rang the police who couldn't give me any advice on breathalyzers and consulted 1 website and two iPhone apps to estimate what I could drink and how long it would be in my system, as I have no frame of reference aside from what would give me a hangover and what wouldn't. I am 6'6" and weight 99kg, I also drink frequently enough to be able to take my ale. The consensus from the three calculators was that I could drink 6 large glasses of wine (2 bottles) and sleep it off in 10 hours. I therefore erred on the side of caution and drank 5 small glasses of red wine and have half a regular strength lager, with dinner.

 

I woke up having had 7 hours sleep and felt a little tired but otherwise not hungover in the slightest. I was breahtlyzed at 9am and blew 0.02% into the machine, promptly shat myself and spent literally the last 3 days panicking severely. I contacted our director and told him yesterday, who then advised that I speak with my manager.

 

I did this this morning and was suspended immediately for Gross Miscconduct - Serious breach of company rules/policy and Wilful failure to carry out a reasonable request.

 

I prefer to expect the best, prepare for the worst and so have begun searching for other employment already.

 

What are your thoughts on this? Aside from a penalty (which dozens of others I spoke with have paid without disciplinary action for similar circumstances) there is no other history of people being dismisses for this. My argument is simply that although I did drink, there are other factors that could influence a breathlyzer and my score was low enough to warrant those factors being present.

 

Thanks in advance. I am not a reckless person and have a perfectly clean slate with this and all of my other employers.

[PashConscious]

I should also note that the company does not routinely breathalyze staff, the only reference to alcohol in my handbook is "serious incapability at work brought on by alcohol" and due to my inability to drive there was no reduction in my capacity to learn or experience anything different than I would have anyway.

[renegadeimp]

I would worry too much about the suspension aspect. Its normal when an investigation is under way.

[PashConscious]

Can an employer breathalyze me without just cause?

[renegadeimp]

They can do random checks on whoever they like. Especially in the motor vehicle industry. Same with drug tests. Remember, you are just under investigation right now. It might not come to a disciplinary at all, although you need to tread carefully. If you got drunk/tipsy/whatever on your night off, but you were technically drunk/over the limit when you arrived for work the next day, then yes, they can commence disciplinary proceedings whether or not you hold a driving licence. Because after all, you are under the influence of alcohol when you arrived for work.

[mariefab]

If the employer has a policy stating that employees must to submit to a breathalyser test when required, I suppose they can.

 

Of more concern are the following issues:

1. To fail the test the result would need to be >0.08%. So, why are they making such an issue of 0.02%?

2. What 'reasonable request' are you alleged to have willfully failed to carry out? Were you told not to consume any alcohol?

[PashConscious]

Thanks for the replies. In answer to both questions I was not inebriated at all at the time, both by my behaviour and actions and also by the legal/medical definition of impaired which 0.04+

 

They don't have a policy in place for breathalyzer tests, only that relating to legally driving (0.35%) or being impaired due to alcohol consumption which I wasn't.

 

And I can't drive because I don't have a license and have never had one, so me driving a car for them under any circumstances is a worse offense.

 

Thanks again.

[renegadeimp]

So from the info you have given, you havent done anything wrong.

 

Either legally or from your employer. I think theyre just playing it safe.

[PashConscious]

It's a shame really to be honest, my record there is flawless.

[Emmzzi]

My director told us that anyone who fails this test will be subject to dismissal.

 

Questions you need to be ready for (I think, they are what I would ask):-

 

the above instructions seems really clear to me. Why did you then feel the need to check with 2 further people and ignore your directors instruction? I think it is this, rather than the test fail itself, which is the issue.

 

Are you incapable of having fun without booze?

 

What do you mean "other factors" and were they *actually* present? because a theoretical debate won't serve you well.

[PashConscious]

Have you ever been to a work-organised party?

 

I appreciate the objectivity but definitely not the tone. I came on here for help not Internet-judgement.

[PashConscious]

In answer to your original question, the director is only the director of the department. The organisers were based in Europe and were co-ordonating 15,000 delegates from 9 countries.

 

In short my director did not organise it so wasn't his to determine the procedure. Hence my double checking.

 

Please don't interpret this situation as me being reckless and trying to weasel out of anything. Short of a staining completely (which no-one, even the manager who suspended me did) I behaved cautiously and conservatively and RESPONSIBLY with the alcohol I consumed the night before and even so, the incident had absolutely no impact on the training itself for me or for the that of my colleagues.

 

3 other people in my group also blew above 0.00. 2 of them mentioned afterwards that it meant possibly a fine of you couldn't drive. The trainer leading the group through the whole process said the same.

 

So why am I the one being sacked for an offense that is obviously so common they have to breathalyze everyone in the whole business?

 

Suffice to say I don't think this is scenario warrants dismissal.

Edited April 14, 2014 by PashConscious

[Emmzzi]

Have you ever been to a work-organised party?

 

I appreciate the objectivity but definitely not the tone. I came on here for help not Internet-judgement.

 

I'm trying to help you prep. I generally prep for the worst. The questions I ask are ones I'd ask if I were the investigating officer, based on what you have written.

 

You can get the hump about it if you want, no odds to me.

 

Which country? Am hoping not Scandinavian!

[Sidewinder]

Have you ever been to a work-organised party?

 

I appreciate the objectivity but definitely not the tone. I came on here for help not Internet-judgement.

 

I think the point that was being made is that a work-organised party is an extension of work. At any event organised by an employer you can be bound by the same rules that exist within the workplace, and that if that includes a no drinking whilst 'at work' then you 'could' be held to be in breach of contract or guilty of gross misconduct. I do not think it an unreasonable question to ask why you decided to drink at all when there was a suggestion that a breathaliser might be required - many people after all would not drink anything if they thought there was a remote possibility of being dismissed - and the fact that some people blew 0.00% suggests that this was true in your case.

 

However

 

Such rules and restrictions should have been made crystal clear, and I do not think that they were from what you have said. You state that you were merely told that anybody 'failing' the test would be liable to dismissal, but were you actually told what the 'pass' and 'fail' rates were? Were you at any point told that if you had 'any' alcohol in your system then this would be deemed a 'failure'? If not, then I think you have a good deal of mitigation.

 

The fact that you are not a driver might also be mitigation, but it seems that if 'everybody' was warned then this would be deemed a clear indication to both drivers and non-drivers. I would suggest that you believed the requirement was for drivers and as a non-driver you felt that it did not apply to you but I wouldn't push it for the reason stated.

 

I would certainly emphasise the fact that whilst you did have a 'couple' you were extremely mindful of the need for restraint, and that the limit of what was acceptable was not made clear and you were not told that it would be prohibited to be tested and for there to be ANY alcohol present.

 

Were you the only representative from your company? Is this more about bringing the company into disrepute than anything else? What exactly have you been accused of?

[PashConscious]

Thank you again for your reply.

 

This event has been held regularly for 15 years or so and the breathalyser element is a fairly recent introduction.

 

My argument is simply that it's a a little unfair to actually dismiss me purely purely out of principle. I wasn't the only employee there from my "company" but as all the delegates were from the group or franchises under the same banner, the lines are a little blurred. There were no delegates or staff there that did not represent the same brand and so it was considered a closed event for (company name) only.

 

My issue really is that "not failing a breathalyser" is a slightly difficult and realistic target and that it's also unfair that my director has decided that this transgression is worth sacking me over whereas other far more severe instances in the past both at this event and other similar ones have not resulted in this action being taken.

 

I did exercise restraint and from what I have been told, absolutely no-one else from my department chose to completely abstain. The more I think about it the more it sounds like this result could have been a false positive.

 

There are people who drank more than me, are of much shorter or lighter stature and actually drive and therefore would be placing themselves at greater risk of being under the influence. All of these people blew 0.00.

 

In answer to your question, my director did not mention specifically what a "fail" actually was. It was only upon arriving that I was told that 0,00 was required to be able to drive and absolutely no mention of any consequences was made.

 

When I asked what the consequences were (after registering a result) the trainer responsible for our group said that dismissal is not something he'd heard. This man said this with the experience of having ran this specific event for several years.

 

I am not trying to say that I have done NOTHING wrong. In a perfect world I have gone to bed at 9pm, said a prayer and dreamt of David Cameron.

 

We don't live in that world and realistically I feel it was unfair to expect me to completely abstain from the free alcohol being thrust in my face (literally) from the moment I walked in the door. I have never taken a breathalyser before and therefore have no frame of reference. I made several lines of enquiry as to what would put me over the limit and/or if I would be breathalyser at all. I was only asking this so I could establish some boundaries.

I established these boundaries, allowed for some variance and undershot the boundary by a significant amount.

 

Punishment or action may well be necessary put instant dismissal seems very unfair and I feel I have been made an example of.

[PashConscious]

Also, I have now accepted that my time hee is over, either by my hand or theirs. I'm not going to resign until this is blown over and I am going to dispute anything more than a written warning.

 

Perhaps making an offer resignation with pay for notice? A few people I have explained this to me (including a Master's student in employment law) have said this will likely fall in my favour at tribunal but I don't want that noise.

[PashConscious]

I have been accused of:

 

- serious breach of company policy through failing a breathalyser test at a global training event

- wilful failure to carry out a reasonable instruction

 

I should note that in my handbook there is no reference to a specific policy covering this incident except "serious incapability through alcohol or drug abuse".

 

Also given my fair amount of caution (I was surrounding by people who have been on many of these training events and were still drinking) I don't think I can be accused of wilful failure. Also passing a test which is this subject to confounding variables doesn't sound reasonable to me either.

[BazzaS]

Also, I have now accepted that my time hee is over, either by my hand or theirs. I'm not going to resign until this is blown over and I am going to dispute anything more than a written warning.

 

Perhaps making an offer resignation with pay for notice? A few people I have explained this to me (including a Master's student in employment law) have said this will likely fall in my favour at tribunal but I don't want that noise.

 

1) Emmzzi can be blunt, but no more blunt than you'll likely get from an employer. Emmzzi's bluntness should be considered with the fact they are usually right, and usually ask the key questions the employer will ask.

 

2) you are merely at the investigation stage, yet are considering resigning?. What if they then provide a reference "resigned, while under investigation for a disciplinary offence". That would be a truthful reference, yet

i) you might never have got beyond an investigation had you stayed, yet

ii) resigning during investigation could make you "look guilty".

 

BTW, if you "don't like my tone" - you may get far worse from your employer, and it isn't me that has suspended you.

I'll also gladly refund you any fee you've given me for advice : where would you like the cheque for £0.00 sent?

[PashConscious]

Sorry for the barrage of replies. The trainer did say that "to drive the vehicles we have a zero tolerance policy and you will be required to show 0,00 in order to drive the cars. In a pre-training video it said that "not being able to drive as a result of this will have serious consequences".

 

The consequences were clarified to me as being a fine in the form of a percentage of the training cost being charged back to the dealership £500 which I would expect to pay.

 

Bringing the company into disrepute has not been mentioned at all and this was a strictly closed (company nam) event only.

[PashConscious]

1) Emmzzi can be blunt, but no more blunt than you'll likely get from an employer. Emmzzi's bluntness should be considered with the fact they are usually right, and usually ask the key questions the employer will ask.

 

2) you are merely at the investigation stage, yet are considering resigning?. What if they then provide a reference "resigned, while under investigation for a disciplinary offence". That would be a truthful reference, yet

i) you might never have got beyond an investigation had you stayed, yet

ii) resigning during investigation could make you "look guilty".

 

BTW, if you "don't like my tone" - you may get far worse from your employer, and it isn't me that has suspended you.

I'll also gladly refund you any fee you've given me for advice : where would you like the cheque for £0.00 sent?

 

I haven't resigned yet and will only have the choice to resign if I am not dismissed.

 

I was suspended yesterday (on my birthday) so you'll understand my feeling a little sensitive.

[PashConscious]

BazzaS you haven't given me any advice

[BazzaS]

 

I did exercise restraint and from what I have been told, absolutely no-one else from my department chose to completely abstain. The more I think about it the more it sounds like this result could have been a false positive.

..........

 

In answer to your question, my director did not mention specifically what a "fail" actually was. It was only upon arriving that I was told that 0,00 was required to be able to drive and absolutely no mention of any consequences was made.

...........

 

We don't live in that world and realistically I feel it was unfair to expect me to completely abstain from the free alcohol being thrust in my face (literally) from the moment I walked in the door. I have never taken a breathalyser before and therefore have no frame of reference. I made several lines of enquiry as to what would put me over the limit and/or if I would be breathalyser at all. I was only asking this so I could establish some boundaries.

I established these boundaries, allowed for some variance and undershot the boundary by a significant amount.

 

 

 

To claim it was a false positive .... Why did you not ask for a more "evidential" sample to be taken?.

 

At the event : Did they hold you down and pour alcohol down your throat?.

You could have taken a glass of alcohol & "nursed" it all night, drinking soft drinks but still "fitting in".

 

You knew you could be breathalysed .... If you weren't sure how YOUR body metabolises alcohol then perhaps that is what you should have done, rather than looking up how an average person metabolises alcohol : for an average there has to be some who metabolise it quicker, some slower ....

 

Some ethnic groups also have sub-populations who metabolise alcohol very differently. For example some people of Chinese ethnic origin lack one of the acetaldehyde dehydrogenase enzymes, and metabolise alcohol much more slowly. They appear drunk on less and stay drunk (or, more accurately : hungover) longer.

So, they shouldn't rely on a website to work out how much they could drink : and in the absence of knowing you could rely in it, and given it could have disciplinary consequence, perhaps you shouldn't have relied on the "alcohol calculator" website either?

[BazzaS]

BazzaS you haven't given me any advice

 

You didn't make it clear until your subsequent post that you weren't resigning now.

It is also hard to respond to your flurry of postings, especially when you don't post quotations for context.

 

1) it was pretty clear that my advice was "don't resign whilst under investigation if it isn't clear you actually face dismissal", since an investigation might clear you!

If you couldn't work that out, your disciplinary issues are the least of your problems.

 

I haven't resigned yet and will only have the choice to resign if I am not dismissed.

 

I was suspended yesterday (on my birthday) so you'll understand my feeling a little sensitive.

 

 

2) Employers aren't bound to consider if it is your birthday (/anniversary / if it is a bank holiday) before suspending someone. In fact, if someone "needs" suspending (a 'neutral act' that allows for investigation, BTW), to delay it might look as if "it could be delayed, so was suspension necessary?".

If it needs doing it should be done without delay, and only in exceptional circumstances "put off until end of shift" or "put off until another day"

It being your birthday isn't grounds to place disciplinary procedure on hold

 

You may find this "blunt", but it is "how it is", which is what you have to deal with, rather than "How you would like it to be ".

[PashConscious]

1) it was pretty clear that my advice was "don't resign whilst under investigation if it isn't clear you actually face dismissal", since an investigation might clear you!

If you couldn't work that out, your disciplinary issues are the least of your problems.

 

Yet you jump in on that assumption, I made no reference to quitting before this is seen through.

 

 

 

2) Employers aren't bound to consider if it is your birthday (/anniversary / if it is a bank holiday) before suspending someone. In fact, if someone "needs" suspending (a 'neutral act' that allows for investigation, BTW), to delay it might look as if "it could be delayed, so was suspension necessary?".

If it needs doing it should be done without delay, and only in exceptional circumstances "put off until end of shift" or "put off until another day"

It being your birthday isn't grounds to place disciplinary procedure on hold

 

You may find this "blunt", but it is "how it is", which is what you have to deal with, rather than "How you would like it to be ".

 

I mention this to explain my sensitivity to the responses I have had and to clarify that I'm feeling quite low today/yesterday. I wouldn't expect them to not take action because it's my birthday because I'm not 6 years old.

 

I appreciate all input and please don't take me saying this as an affront to this forum but BazzaS, please take your advice somewhere else. I really don't need a lecture right now.

Thanks

[BazzaS]

 

I appreciate all input and please don't take me saying this as an affront to this forum but BazzaS, please take your advice somewhere else. I really don't need a lecture right now.

Thanks

 

It is clear from your snapping at Emmzzi and your responses to me that you might think you "appreciate all input", but you clearly don't.

 

If you had put in your first post "please only reply if you are going to tell me what I want to hear, or be 'fluffy' with me" : I could have avoided giving advice that wasn't welcome : less hassle for you, more efficient for me.

 

Do you think it is more or less likely to get you valid advice if you are saying: "all input appreciated" but showing "input only appreciated if saying what I want to hear, or made all 'huggy-wuggy' to avoid upsetting delicate me"?

Did you want advice or sympathy?

 

Quite simply : do you think any of the points I've raised are actually wrong? Rather than "phrased other than you'd like"

 

I accept I've replied where asked not to, but in my defence I feel there is an important point here : ask for advice on an open Internet forum and you may hear other than what you'd wish. Call it a lecture, discussion or advice : If a reply fits in with the posting guidelines, why shouldn't it be allowed?