How can my brother avoid the sack ??

DGJsaver

Hi All

One of my younger brothers has been suspended on full pay from work until tuesday morning when he has a disciplinary meeting , the charge is swearing in the office and upsetting certain customers (his letter doesnt elaborate on this) the letter makes it plain that his company is leaning towards dismisal

How can he avoid this , would requesting redundancy before the meeting work , as he is in the building sector and work is slow now anyway , or what difference would it make if he resigned effective BEFORE the meeting ?

Basically , with a sacking on his history getting a job will be very difficult , even more so that after redundancy or resignation...

He has a couple of kids and a wife and is worried sick

Any advice welcome

Conor_3

I think he's stuffed TBH. Not a good idea upsetting customers, ever. However, they can only dismiss him in this instance if:
1) It's his first year working for them, or
2) He's had a previous verbal and written warning, or
3) It's counted as gross misconduct in his contract of employment, usually under the "behaviour bringing the company into disrepute" type clause.

TBH if they're leaning towards dismissal, I reckon there's more going on than he's telling you. I suspect he had a barney with a customer or two and that's just not on.

With a sacking, not only will he find getting work difficult, he'll find getting JSA hard too.

Liz_the_Whizz

Hi DGJsaver,

You say your brother's employer is tending towards dismissal, but bear in mind that an employer is obliged to tell the employee if the disciplinary process may result in dismissal. So they are (hopefully) not prejudging it.

Whether it will come to dismissal, it is impossible for anyone not involved in the process to say. We don't know whether your brother has any previous disciplinary record, the circumstances in which he swore in the office (eg was it directed at someone in an aggressive way or an involuntary lapse at a piece of machinery?), and how the employer has dealt with previous cases.

If your brother is unsure about any of the allegations, then he should seek immediate clarification as he must be given sufficient information for him to understand and respond to them.

The company's attitude towards paying for redundancy is likely to depend on how strong a case they think they have against him - after all, why pay when they may be able to dismiss? However, disciplinaries often aren't clear cut, and they may be willing to do a deal to bring a potentially messy situation to a tidy conclusion.

Resignation does cut short the disciplinary process short but make it difficult to get a reference from them and also makes it tricky if he needs to claim benefits.

Only your brother really knows how strong the case against him is and what he can say in his own defence (eg provocation, stress etc). The best advice will be from someone who knows the workplace, a trade union rep ideally, if not a trusted colleague who is willing to accompany him if he decides to attend the disciplinary meeting.

DGJsaver

Thanks guys

I am with him now he says a few weeks ago he expressed his dis satifaction with his current role and it`s lack of progression as promised , also , he had an argument with a colleage in 2007 which resulted in him being given a written warning .

He feels that they are looking for a way to get rid , without paying anything , bear in mind i only know one side , i love him but theres always two sides !

Here is his letter , in full..


I write to invite you to a discplinary hearing on tuesday 21st october at 9am.

This meeting will be chaire by Mrs x , the sales office managers counsel, it will also be attended by myself as HR rep

Due to the nature of the companys concerns you are suspended from your duties until the hearing.Please do not come to the premises until the hearing.

The meeting will address the following issues ;

1) Your poor attitude as evidenced by recent customer complaints

2) Your apparent lack of proffesionalism within the office environment as evidenced by staff complaints

3) Your use of unacceptable language during your interactions with others again evidenced by recent complaints


As you are also aware a full investigation process was undertake last year at this time formal action short of dismisal was taken .Whilst there has been no subsequent disciplinary action it is entirely reasonable that the company should remain mindful of that fact that similar complaints are again raised

It is of paramount importantce that you are aware of the seriousness of the concerns raised, your previous disciplinary record will be considered as part of the review process.

You have the right to accompanied by a colleague , please advise who that may be as soon as possible.

Regards

HR


He says he has rung the HR and they say they shouldnt even be talking to himm , he did raise the redundcany question but they were well against that.


Also , he wants a external manager to accompany him , what happens if that person cant make tuesday ???

He is an Account manager and the external guy is the key account manager externally


Any advice welcome

Thanks

daveboy

Someone else may be able to come up with the official line on this but I am of the feeling that if the person accompanying him cannot attend on Tuesday, then they legally have to change the date of the hearing.

As for the written warning in 2007....if it was more than 12 months ago it may well be removed from his record. Most contracts have something in them that states that verbal warnings etc will be removed after a specific time if no other issues have come to light.

He certainly needs to find his contract or terms of employment and have a thorough read of them.

CarolynH

Conor wrote: »

With a sacking, not only will he find getting work difficult, he'll find getting JSA hard too.

He'll find it equally had if he resigns though. They're treated much the same by the adjudication officers.

daveboy

Further to my earlier post, I found this on the TUC website but have not found it yet in legislation on the HMSO website:

If your companion is not free at the time when the meeting is organised, you can ask for a postponement of up to 5 working days and ask for a different time within those 5 days when your companion is free. The alternative time must be a reasonable one.


See HERE

This applies regardless of whether there is a union in his workplace or not.

webwalker

It appears that this has been an issue for some time and the behaviour has not improved despite his first severe reprimand. From the employers side of the fence it does not look like your brother has made any attempt to improve his behaviour and they do have a strong case against him, employment law is very complex and the rights to dismiss are legion, written warnings are not always required and the fact your brother has faced a disciplinary hearing before will stand against him. Sorry to be of no comfort to you.

Pssst

In these troubled times,if you want to keep your job you have to do it to the best of your ability and try to make yourself indispensable. It looks like your bro has a slightly different attitude and maybe the company are thinning out their staff so he walked right into it? I suspect they would be wary of making him redundant as this has other implications for them and indeed,why should they?

daveboy

I have now found it.....Employment Relations Act 1999:

10 Right to be accompanied

(1) This section applies where a worker—

(a) is required or invited by his employer to attend a disciplinary or grievance hearing, and

(b) reasonably requests to be accompanied at the hearing.

(2) Where this section applies the employer must permit the worker to be accompanied at the hearing by a single companion who—

(a) is chosen by the worker and is within subsection (3),

(b) is to be permitted to address the hearing (but not to answer questions on behalf of the worker), and

(c) is to be permitted to confer with the worker during the hearing.

(3) A person is within this subsection if he is—

(a) employed by a trade union of which he is an official within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992,

(b) an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings, or

(c) another of the employer’s workers.

(4) If—

(a) a worker has a right under this section to be accompanied at a hearing,

(b) his chosen companion will not be available at the time proposed for the hearing by the employer, and

(c) the worker proposes an alternative time which satisfies subsection (5),
the employer must postpone the hearing to the time proposed by the worker.

(5) An alternative time must—

(a) be reasonable, and

(b) fall before the end of the period of five working days beginning with the first working day after the day proposed by the employer.

See HERE

DGJsaver

Thanks daveyboy , much appreciated