Is this unfair dismissal ? or constructive ?

bouncer111

Hi, I was dismissed from my job a few days ago for swearing in a telephone conversation after a complaint was made. I worked at the company for 15 years with out no warnings, complaints etc. I was sacked for gross misconduct for bringing the companys name in to disrepute. I understand what I did was very stupid. I was off sick at the time on medication. Does this count as gross misconduct ?

My disciplinary was on Friday but the strange thing is that when I come home from the disciplinary my wage slip was there and they had paid me up until that day. My wage was £350 less than it would usually be. My wage slip would have been sent the day before disciplinary hearing so it means that they had already made up there mind about what they were going to do before I said a word in the meeting. Can they do this ? Does this count as unfair dismissal ? Or maybe even constructive dismissal ? Thankyou

KME91

Constructive dismissal is when you quit because you can't tolerate the situation at work any more, so no this is not constructive dismissal.

Your post is somewhat confusing. You say you swore on the telephone after a complaint was made. Who did you swear at, and what was the complaint about? And what were you doing on the phone in the first place if you were off sick?

In theory swearing at a customer for example would quite easily be seen as gross misconduct, and could be a sackable offence. Depending on your culture, and what kind of work you do, so could swearing at a colleague.

As far as the dismissal and your pay goes, without knowing what kind of disciplinary process was followed, it's hard to say. Was this your only opportunity to present your case? Or did you have a hearing? Does your company have a disciplinary process, and did it follow it? It's possible to argue that your employer failed to follow the correct process, but you haven't given us enough information here to really know.

Finally, what are you looking to achieve here? Do you want your job back? or compensation? Think carefully about what you really want here, it makes a difference to what you might choose to do next.

Evilm

Did your wages cover the days/hours you HAVE worked? If you get paid monthly they might have only paid you for the days you did work and not the rest of the month.

Btw, depending on whether profanity is mentioned in the contract and company handbook this is likely completely legal. Even if it isn't should they consider that it was severe enough (eg. swearing at a major client) then again it's legal.

bouncer111

Hi, I was off sick on steroids at the tme for severe asthma, I received a parking fine that I had to deal with so I rang up the fleet company who deal with this. At the end of the conversation I said this is f ing rediculous and and hung up. It wasnt directed at the person. The complaint was about my conduct, not about swearing at the person. I presented my case at the hearing, before the hearing there was a fact finding meeting which was sprung on me with no notice.

There is no mention of swearing in the handbook and this was totally out of character for me. 15 years with out any complaints.

To be honest I am not sure if I want my job back now but I havent made my mind up yet. I am disappointed in the way they have dealt with this, I think a warning was the correct way to go. I was paid up until my day of dismissal but the money was paid in to my bank on the Friday morning before the disciplinary had even been heard, so surely they must have made there mind up before I had a chance to say anything ? Many thanks

Acc72

bouncer111 wrote: »

The complaint was about my conduct, not about swearing at the person.

From your initial post, it sounded as though you were dismissed for swearing.

It now looks as though you went through an investigation and disciplinary process (for a completely seperate issue) and were dismissed before you swore ?

If you give some details of the initial "complaint" and how it was handled etc. hopefully somebody will be able to give you some advice.

KiKi

It's not constructive dismissal as you haven't resigned.

I agree that gross misconduct seems extreme in the context of what you've described, but I see now you've said it was your conduct under review, not the swearing. Yes, poor conduct could be considered as gross misconduct, but you need to provide more details.

Regardless, unfair dismissal is about the *reason* for dismissal - and gross misconduct is a fair reason. I don't know if an ET would review the reason behind the gross misconduct, as I don't know if that's within their remit. Perhaps a legal eagle can answer that!

Have you appealed the decision?

Have they paid you in lieu of your notice? Did they follow the company disciplinary policy? Were you offered the opportunity to have a rep / colleague in the disciplinary hearing with you? If not, then wrongful dismissal potentially applies.

(Unfair dismissal is about the legally fair reasons for why you can dismiss someone. Wrongful dismissal is about how you do it and if you've met contractual obligations.)

KiKi

Uncertain

KiKi wrote: »

Have they paid you in lieu of your notice? Did they follow the company disciplinary policy? Were you offered the opportunity to have a rep / colleague in the disciplinary hearing with you? If not, then wrongful dismissal potentially applies.

IF this amounts to gross misconduct then the firm does not need to make a payment in lieu of notice. They do however still have to pay for any untaken holiday.

If they did not follow proper procedure then the dismissal would automatically be unfair but this in itself does not mean the OP would get any compensation. A tribunal MAY take the view that he would still have been dismissed even if proper procedure had been followed. The fact that the payslip seems to suggest the outcome had been pre-decided may be very useful.

If the OP's contract gives him additional rights and the firm failed to honour them then this may be wrongful dismissal.

I would agree that, on the basis of what we are told here, the penalty seems harsh.

OP, are you a member of a union or does your house insurance policy give you any legal expenses cover. Many do and often people don't realise it.

KiKi

Thanks for corrections and info!

bouncer111

I spoke to acas and they agreed it seemed very harsh. I have a feeling that because I have been there for 15 years I was on more money than the new people they are empolying who only get the minimum wage. I have always worked so it feels very strange, i do not know the first thing about benefits, job centres etc!

The disciplinary procedures states I should be invited to a fact finding meeting but I was not invited to it, I was invited to a back to work meeting for my Asthma and then at the end of the meeting the issue of the complaint was raised and the fact finding meeting was done there and then.

It was the swearing I was dismissed for because they said it was bringing the company name in to disrepute. It was not directed at anyone and it was an internal call to the fleet managment.

I did take a work colleague with me to the disciplinary, unfortunatley I am not in a union and do not have any insurance cover so they are in the position to walk all over me.

Perhaps I was paid up until that day before hand was because they decided if I was to be sacked then the wage would be paid up to date as that day was actually pay day, maybe they were thinking that if I was to have just received a warning they would have paid me the extra money after the disciplinary hearing ?

Uncertain

bouncer111 wrote: »

Perhaps I was paid up until that day before hand was because they decided if I was to be sacked then the wage would be paid up to date as that day was actually pay day, maybe they were thinking that if I was to have just received a warning they would have paid me the extra money after the disciplinary hearing ?

Being pedantic, the disciplinary meeting is actually work so you should be paid for that day (or at least part of it) regardless!

Are you owed any holiday?

I think you need to investigate this further. Some solicitors will offer a free initial consultation. If you have all the information well prepared you can gain quite a lot in even half an hour. Some will also take on employment claims on a no win no fee basis. Obviously they get a hefty percentage if you do win but it may be a worthwhile option.

The CAB should be able offer you an appointment with one of their employment specialists. Don't get fobbed off by one of the well meaning front line volunteers who have only limited training.

Finally, people do make successful employment tribunal claims entirely on their own so it can be done.

Some firms will fight all the way but many will look to settle as, for them, it is often cheaper.

SarEl

I agree that the outcome is harsh - but the problem you face is that the test of a tribunal is not whether it is harsh. That would be substituting their opinion for the employers, and that is something they are absolutely not permitted to do. The test of the tribunal is whether or not the outcome (dismissal) is within the range of possible outcomes which a reasonable employer would consider. To apply this test there is no consideration of mitigation - it is a simple yes or no. And the fact is that almost every time the answer is yes, it is within the range of possible outcomes that a reasonable employer would consider, because very few owrkplaces condone or encourage swearing at people. I know you say that you didn't swear at anyone, but I am afraid that you were onbviously having an "intent debate" with that person and you agree that you did swear at the end of that before you hung up. If they interpreted that as part of the conversation then I cannot entirely say that they don't have some cause to think that.

To be perfectly honest, you probably stand at least as good a chance at an employers appeal - they can consider mitigation and circumstances, and may be persuaded to reduce this to a warning, albeit it may be a final warning. That would be the route that I would take.