Please help, anyone - OH dismissed

Fridge3

pjcee wrote: »

This is an odd question, but do you think being caught having sex in the office constiutes breach of trust?

Employers do not need to explicitly refer to everything that is unacceptable in a contract because there are also implied terms. So, contractually, sex in the office would likely be viewed as GM under implied terms.

Fridge3

pjcee wrote: »

But we have a case where a higher grade did something which I think anyone would consider as not being a good role model - earlier posts re sex in office - and was just regraded - surely thy have to apply the sanctions fairly?

'You' don't have a case where a higher grade has done something wrong. The employer has investigated that case and (rightly or wrongly) come to a decision.

Even IF you had access to all the details of this other case (you shouldn't), then even if the panel considered this (and they certainly shouldn't), the premise relies on another wrong as mitigation/defence.

If anything the panel will use any reference to previous bad/erroneous decisions more as a basis for learning and ensuring they don't make the same mistake again.

This may sound harsh and matter of fact but that's how the process works.

SarEl

NiallB wrote: »

Over here in NI it's a popular political pastime and known as 'Whataboutery'

It's a popular pastime here too - just naver heard it called a name. Can I borrow this????:)

Fridge3

pjcee wrote: »

oh yes, we know the first investigation was completed by 17th Dec. He did not receive the letter until March. For some reason they added a supplimentary report covering into Jan which was when he view the images, for a total of 6 mimutes. So if the had told him of the investigation in Dec (procedure says employee must be advised immediately that a breach is known) he would not have comitted the more serious offence. This is why i think they are using breach of trust, because their case is so weak.

Much better to evidence procedure wasn't followed IF that is the case.

Be sure on the definition of 'breach' - routine monitoring on internet usage/hits may not be the breach but an alert to monitor more closely. The breach may be the !!!!!! hits.

Regardless, from what is posted, this is the better defence because it focuses on the case in hand. And later down the line if it goes the distance, ET focus on procedural errors.

pjcee

Please can I just say AGAIN - the way this process works in the Depts involved is as I have described - the employer side brought a folder of the precidents they were going to use to guide them to the hearing - I have seen this recorded in the hearing transcript.

They brought a set of precidents for the wrong dept, as OH has reserved rights to be treated - for pay, leave AND DICIPLINARY PROCEDURES as though he still works for the other dept.

The union Rep requested copies of the precidents used and was told he could have them. I am sorry if this is not how things are done elsewere, but is is how the process works in this case.

The Union Rep has gone back and looked through all the precidents from both Depts and no-one has been sacked for behaviour of this nature, or for anything coming close to this. He know this because this is how he does his job for the union. It is usual and normal for the both Depts to defer to precident and apply sanctions accordingly. They have not done so in this case. I also have a friend who is has been a HR manager within one of the depts, has dealt with dicipinary cases of this nature and his first words were 'has someone got it in for him, this is a written warning placed on record'.

Fridge3

pjcee wrote: »

Please can I just say AGAIN - the way this process works in the Depts involved is as I have described - the employer side brought a folder of the precidents they were going to use to guide them to the hearing - I have seen this recorded in the hearing transcript.

The employer using other cases as a guide to the range of possible penalties is not the same as the employee/union using them as a defence or mitigation. Remember you won't, or shouldn't have seen specific details of other cases and even if the union have they cannot use specifics for comparison.

It is not just the actual offence that is considered but the context around it, so for example two identical offences may have different outcomes because the employee or position is different. One may have more experience or be in a position that requires more responsibility, trust, mentoring, etc which is why every case is different.

pjcee wrote: »

They brought a set of precidents for the wrong dept, as OH has reserved rights to be treated - for pay, leave AND DICIPLINARY PROCEDURES as though he still works for the other dept.

The union Rep requested copies of the precidents used and was told he could have them. I am sorry if this is not how things are done elsewere, but is is how the process works in this case.

The Union Rep has gone back and looked through all the precidents from both Depts and no-one has been sacked for behaviour of this nature, or for anything coming close to this. He know this because this is how he does his job for the union. It is usual and normal for the both Depts to defer to precident and apply sanctions accordingly. They have not done so in this case. I also have a friend who is has been a HR manager within one of the depts, has dealt with dicipinary cases of this nature and his first words were 'has someone got it in for him, this is a written warning placed on record'.

Reserved rights refer to the employee, not the business, so covers things like pay, pension, redundancy, leave entitlements etc.

It's certainly unusual that a dept (B) would inherit working practices from another dept (A) because their business needs could be substantially different and would mean constantly be referring to another depts different T&C's from another business for disciplinary, grievance, harrassment etc.

NiallB

SarEl wrote: »

It's a popular pastime here too - just naver heard it called a name. Can I borrow this????:)

Fill your boots!

pjcee

Fridge3

Can you please just accept that what I am saying is correct - I have spent all week going over and over all this, I know what I am saying is right.

There are perfectly good reasons why the reserved rights issue is as it it, but I cannot comment more without making the Depts involved fairly obvious to anyone in one of 3 very large govt departments It's probably clear to some already).

And yes, I understand that each case is judged on it's merits but whichever way this is looked at the sanction of dismissal is used so vary rarely in the depts concerned, and more senior managers, with as much experience and responsibility have not been dismissed for doing things which constitute a breach of trust (and I think being caught during working hours having sex on your desk falls into that category, hard to think of any mitigation for that, along with a high profile case in the media involving a death and drugs, ditto).

pjcee

And if the 'context around it' had been considered, the fact that this all happened withing a defined 4 month period, with a Harley St doctor (employed by the dept, not OH) saying he was using the internet to deal with the severe mental stress he was experiencing (I have read the report), and that this is the first time in 32 years he has had any issues about his behaviour, whilst not excusing his behaviour, it might have been considered that an alternative to dismissal was possible.

Emmzi

PJC, you are driving yourself mad with this. Your rep seems to know what he is doing, but que sera sera. I am not sure what good going over this further is doing for you?