Gross Misconduct dismissal

SLITHER99

IT was public sector (ish) but not Government. I don't want to say exactly what it was in case someone reads this... this is a public forum at the end of the day.

He's not looking for a payout or anything like that. He's more annoyed that they've done him for something everyone does and does so regularly! In fact, he assisted one of his supervisors in removing several desktop machines to his car boot one evening that he liberated from the recycle.

It's more that he now can't give them as a reference for 11 years hard work. It kinda makes it look dodgy to other employers.

zzzLazyDaisy

Uncertain wrote: »

Does he have evidence that this was actually allowed? The fact that most people did it and nobody bothered is not the same thing.

I suspect that this is extremely unlikely. Why? Because I know of organisations that DO distribute old computers to staff, for a nominal fee, after replacing the hard-drive and re-installing the OS.

For an IT company this would be a simple scheme to organise if they wished to do so. The fact that they choose to dump old hardware in a cage and send it for recycling, speaks for itself.

It is also very unlikely that the company would have dismissed someone with 11 years service for gross misconduct without any instructions/warnings/advice about this, as it must be a big temptation. There will (or should be) memos or notices or information in the employee hand book or disciplinary procedures that makes it clear that taking stuff from the cage, or otherwise helping yourself to company property is not permitted. Bottom line - it is theft of company property - that much at least must be in the disciplinary procedures under gross misconduct.

If he is really saying he had no way of knowing that he was not allowed to help himself without prior getting prior authorisation, then he has grounds for appeal and provided he is within time, a complaint to a tribunal.

If he can produce witness evidence that this is a common practice and known about by the management, and he was singled out for different treatment, then there is a potential argument that dismissal was not a reasonable response. That would very much depend on the facts. But really, it is unlikely that his manager or colleagues would give that sort of evidence to a tribunal - if that were the case, they would have spoken up for him at the time.

Just one thing though - While the tribunal has no power to order the employer to give a reference, agreed references are very common as part of an agreed settlement. So sometimes it is worth making a claim in order to agree a settlement through acas for a mutually agreed reference. Though he does take the chance that the employer may decide to make an example of him and see the whole thing through to a hearing.

closed

Where is the supervisor (or manager) now, backing him up, or hiding? Have the procedures been tightened up since and other incidents investigated? Has anyone else been suspended?

Any sort of [semi]government organisation will have a rule book or procedure, and I doubt it will say people can walk out with kit without authorisation.

Fraud suggests either another misdemeanor, or he signed it out/put it on the spreadsheet or tried to cover it up

Uncertain

SLITHER99 wrote: »

But yes, all IT staff frequenly took kit for home use.

The trouble is I expect he will find it very hard to get current staff to back him up on this. Few are principled enough to side with a dismissed employee against their current employer.

If he is friends with any former staff they may be more inclined to help.

However, as I (and others) have said, the fact that lots of people did it is only of very limited help.

Daisy's point that it may help to convince a tribunal that dismissal was not a reasonable response is a good one. However, as I said, there is no requirement to treat everybody the same.

SLITHER99

Well, he said "fraud" but I didn't think of this at the time. That does raise questions in my head and in my mind, he's not the type to do that. And I've seen the laptop in question. No way was it in service life. In fact, the RAM had already been liberated before he got to it. I can only imagine they've implied that he got to the spreadsheet and made alterations to it, however from what I know, I don't believe he would have had that sort of permission to make that change.

I used to work there a LONG time ago too. So as for witnesses, sure I picked off a few things myself in my year there in very much the same way. So I do know the process. I resigned after it was obvious the commute was too much, but one day, when I mentioned I was about to buy a new monitor, my supervisor at the time took me over to said cage area and told me to take what I wanted! I walked out with a monitor and a desktop machine for someone else without so much as even a bat of an eyelid. It was the culture. So as for witness, sure thing, here I am!

I've no idea where either managers are now, it's been a decade since i was there.

It was a standard dismissal type meeting where they put him on consult for a month, brought him back in and dismissed him.

Just to ask about this mutually agreed reference. It just so happens I currently hold a position where I see references. Would a mutually agreed reference look any different to a standard normal reference?

Uncertain

SLITHER99 wrote: »

Just to ask about this mutually agreed reference. It just so happens I currently hold a position where I see references. Would a mutually agreed reference look any different to a standard normal reference?

They often do I'm afraid but what else can you do?

There are two options, the first of which is far more common......

A form of words is agreed e.g "Joe Bloggs worked for XYZ Ltd from 00/00/00 to 11/11/11 in the position of chief widget maker. He was a reliable employee and always worked to a high professional standard". This and nothing else is then sent in response to any reference request.

The trouble with this is that it doesn't answer any specific questions that may be asked. Normally there is a requirement on the firm not to provide any other information apart from the agreed words even verbally (although this is very hard to police).

Less common is a further agreement that anything else will be sent to the ex-employee for approval before being issued. Normally you need to be in a very strong bargaining position to get an agreement to this due to the potential for ongoing arguments.

zzzLazyDaisy

SLITHER99 wrote: »

So as for witness, sure thing, here I am!

Sorry but you would be no help at all. You say you left over a decade ago. It is completely irrelevant what the practices then might have been. What matters is what the practices were when he committed the offence.

Just to ask about this mutually agreed reference. It just so happens I currently hold a position where I see references. Would a mutually agreed reference look any different to a standard normal reference?

Who knows? It depends on what their standard normal reference looks like, and what is agreed. Basically what normally happens is that the parties agree that if the employer is asked for a reference, they will only say what has been agreed - no more, no less

The problem is simple. The employer almost certainly has written instructions/procedures for dealing with outdated computers. It is entirely possible that people ignore those instructions from time to time - but they do so at their peril. If they are caught the chances are they will be hung out to dry, because other employees are hardly likely to hold their hands up and admit they they have also taken equipment in breach of the rules.

It is important to understand that, when considering whether a dismissal is fair or unfair, a tribunal can only look at the facts in as far as they relate to the law. The tribunal is expressly prohibited from substituting its own decision for that of the employer. Even if the tribunal think the dismissal is a bit harsh in the circumstances, they cannot say that they would have done something else, all they can do is apply the law to the facts.

All the employer has to do is to conduct a thorough investigation into the breach of the rules and come to an honest and reasonable conclusion that the employee is guilty of the conduct complained of. That isn't difficult as he was caught red-handed and admitted it. The employer then needs to show that dismissal is a reasonable response. If this was a clear breach of instructions, and especially if the conduct fits the organisation's definitions of GM as set out in the handbook/procedures, then the organisation is pretty much home and dry, as far as a tribunal claim is concerned.

SLITHER99

^ I kind of imagined that being the case. I dismissed somebody myself a couple of years ago for Gross Misconduct and I remember the HR business that went on.

Cool stuff, I just wondered what options there were.

I found out that the fraud relates to the fact that as he bought a new hard disk and installed his own OS, he was freely using it as his own device and the clean OS was not subject to the IT policy employed for normal PCs supplied by the company. Basically, people are allowed to use the open WiFi for their phones, laptops, iPads, etc) and as he used the laptop sometimes with this connection and was not using it with a company supplied OS with all the group policy attached on the main network, this is what the fraud amounts to.

He does, however, have full details of the job ticket where another engineer had decomissioned and replaced the device and sent the laptop off to recycle.

closed

unusual definition of fraud

Uncertain

SLITHER99 wrote: »

He does, however, have full details of the job ticket where another engineer had decomissioned and replaced the device and sent the laptop off to recycle.

Yes, but as we keep saying, that alone does not give him the right to take it home!

Waste food in a supermarket is a good example. Staff have been fairly (in law) sacked for taking food home that was scrapped.