Dismissal from work

[ashuss]

Hi

I have been dismissed from my employment of eight and a half years for apparantly swearing at the team leader no warnings

whatsoever 2 witness statements were taken one saying nothing and one anonymous saying I did but conflicting content to team leader statement.I do not remember saying this .Where do I stand? I am 59 yEAR OLD WOMAN WITH ABSOLUTELEY NO HISTORY OF SICKNESS OR DISCIPLINERY ACTIVITY

[Emmzzi]

hello,what kind of contract are you on please? permanent/ agency/ zero hours casual all have slightly different rules.are you a member of a union?it sounds like they did an investigation, is that right? Did they also have a disciplinary hearing?

[ashuss]

Have a permanent contract of 30 hours not in a union as they dont recognise it .There was an investigation whilst I was on holiday and I had a letter to attend a hearing on 2/4 Thursday(the alleged incident occured on 24/3 Tuesday,but not reported until 27/3 Friday) I was dismissed instantly from the hearing without pay in lieu or any paperwork.

[Emmzzi]

They seem to have followed due process. Are they classing it as gross misconduct? Were you given the right to be accompanied?TBH probably depends how bad the alleged swearing was.

You should also have a right of appeal.

[ashuss]

Yes they have regarded it as gross misconduct and yes there is a right of appeal.It clearly says in team leader statement that after I allegedly said it that he laughed so he couldn't have been too put out.When I recieved the paperwork a week later I was shocked!If it was gross misconduct should I not have gone immediatly or at least the next day.The disciplinary hearing was with two members of company staff who do not actually work on site the original conversation was about working conditions and the team leader is one who is always joking and you never know if he is serious or not.That day was particulary tough as there was no floor space to be able to operate high pressure machines.

[Emmzzi]

Well, sometimes people laugh when they are shocked....If there was any racial or gender element to the insult, the dismissal may well be upheld. those are usually treated more seriously.Are you appealling on the grounds you did not say it, or that the penalty is too harsh? You need to opt for one or the other.

[ashuss]

I don't remember saying it and it says on the statement that there was an employee standing between us at the time but he didn't hear it but a new recruit that was standing away from incident did.So maybe I should appeal at the penalty I'm not going to admit to something I don't remember doing! Something dosn't ring write about the whole incident I wonder if it was a setup as it would cost them a lot of money to make me redundant and I do know redundancies have started at our other sites.

[Emmzzi]

the phrase you are using is "I don't remember doing it". Not "I would never ever say that."

 

There's an important difference.

[ashuss]

Thats a good point! and I wouldn't say that too him as he's team leader.I am actually quite fond of him and regard him as a friend.When I had the letter I weny straight to him and apologised profusely if I had upset him in any way.

[Emmzzi]

so the appeal is that you didn't, clearly people know it's out of character for you, and you think it's been misheard

[Atlas01]

I'd echo the above "don't remember" is always viewed as guilty i'm afraid in my experience. Unless industrial language is so common there is a genuine chance that this was one of many similar conversations pleading no recollection will do you no good. If you have already used this defence then changing it will also be viewed as you trying to cover guilt even more. (personal experience here)

 

Employers need only base dismissals on the balance of probability, no need to prove guilt in employment only they only need to show a process was followed and they believe the event to has transpired as reported. I'd always have another bash in these circumstances but you need to make sure you appeal correctly and within any set time limits.

 

Usually if it is one word against the other many employers will tread carefully but they would be able to use their knowledge of the manager to support a decision without any verifiable evidence or witnesses, e.g. there are people i know where i work who if they said i never swear at work i would believe 100%, others 0%.

 

With the weight of a witness backing them unless you can pull a rabbit from the hat (like they were not even there) your chances are slim in my view and the only option is remorse and mitigation.

[hsbcfiddled]

subscribing

[hsbcfiddled]

If there are two 'witnessess' and one heard it. and yet the other who was positioned between Ashuus and the team leader didnt hear it surely its 2v2 and therefore a draw? No conclusive evidence as to whether she swore or not?

[Emmzzi]

If there are two 'witnessess' and one heard it. and yet the other who was positioned between Ashuus and the team leader didnt hear it surely its 2v2 and therefore a draw? No conclusive evidence as to whether she swore or not?

 

but, it's not a criminal trial so it doesn't work like that

[Atlas01]

not hearing is vastly different than "they didn't say it" in either arena when it comes to a witness, there are times when i zone out at work especially if staring at something complex on a screen and need someone to prod or throw something at me to get my attention because there can be lots of chit chat and waffle going on. I would not be able to say if they did or didn't say something even when i'm sat about a foot away.

[Sidewinder]

The employer needs only a 'reasonable belief' of guilt after a 'reasonable' investigation, not a 'belief beyond reasonable doubt'. Even if only one of two witnesses remembers hearing the comment then the employer could 'reasonably' dismiss, however they would be foolish in the face of a well organised appeal.

 

It depends on what might or might not already have been said at the original hearing, however the appeal should be framed along the lines of:-

 

The comment was not made - it is not a phrase which you would ever have made even in jest, and you hold the Team leader in sufficiently high esteem and authority that you would not make this or any similar comment

The original hearing did not take sufficient account of those who said that they did not hear the comment in question

The original investigation was flawed for the reason above and was unreasonable in dismissing you, for the employer cannot have gained a reasonable belief of guilt on the evidence available

 

You would also emphasise your very long work history and unblemished record.