Case Study - Your Thoughts

Mischa8

sho_me_da_money wrote: »

The offence did not constitute gross misconduct nor an instant dismissal. It just so happened that 2 other people who committed the same crime on the same day had some wages docked WITHOUT going through any formal procedure. The difference between the offenders? Two were white and one was black. Guess who the black one was? You got it.

As someone else said - doesn't this always happen to the people you know??

I think it's you, if it happened at all. I mean you're Asian (by your own admission) so you could count yourself as *black*.

Mischa8

sho_me_da_money wrote: »

Hey guys,

I am developing a hobby for learning about HR/Employment law and as such have been presented with a few real life cases. Today I have the following:

Case Details

1. Employee requested to attend premises on day off
2. Employee arrives and is told that unless he/she can give a good enough reason in this meeting for the offence he/she is about to be informed of for the very first time, he/she will be summarily dismissed for Gross Misconduct in respect to an offence that took place a week ago.
3. Employee was not given any information in advance - letter, allegations, witness statements, an invitation! (other than the phone call), investigation, opportunity to be bring in a witness, absolutely nothing, zilch, nadda. He/She is smacked with it FULL ON in this one unplanned meeting.
5. Employee gives his/her version of events and believed to have provided a satisfactory answer.
6. Employee is asked to go outside for 5 mins.
7. Employee returns and is informed he/she is dismissed effective now and any personal contents in his/her draws will be sent to their home address.

Now I've read the disciplinary procedure in which it states that Gross Misconduct can warrant immediate dismissal but I am not sure if this applies here considering the allegations seem to align moreso with reasons listed under the incapability and/or conduct sections. Additionally, the response offered by the employee actually lessened the original allegation.

The DP explains how a) an investigation must take place before action is taken, b) if a DP hearing is to take place, the employee is given 3 days before any hearing is to take place, c) in situations of Gross Misconduct, a decision will not be made without reference to a director etc. None of this was followed.

Now here's the killer part the employee is about 2 weeks shy of the 12 month service mark, does he/she have any legs to stand of? Another forum (where I copied the above from) seems to suggest this can be deemed "Automatic Unfair Dismissal" as the employee has a strong case for the following breach:

employee was dismissed without statutory dismissal and disciplinary procedures having been followed

Surely a 12 month qualifying period still applies for the above?

Why are you getting so involved?? why does this friend/person trust you so much/give you so much info?

You seem to have given no indication of the so called offence.

BUT - you were given FWW and in deep doggy doo-dah (using your phrasing here) in a previous job. Leopards can't change their spots hey??

I think if you or your imaginary *friend* then you're dismissed and yes maybe they used the *under the 12 month period* and Gross Misconduct rule.

BAM

zzzLazyDaisy

OP, I am sure you know by now that if you do not meet the minimum qualifying service requirements, the employer can dismiss you for any reason or no reason at all, provided they do not breach discrimination laws.

There is no requirement to follow a formal disciplinary procedure, although most prudent employers will at least have a meeting with the employee to ensure that there are no underlying issues that might result in the dismissal being exempt from the minimum service rule, before making the decision. This appears to be what happened in your case.

The fact that you appear to have acknowledged the concerns and attempted to explain them suggests that there was a reason for the dismissal, unrelated to race. Without more information you would struggle to get a race discrimination claim off the ground.

It is impossible to say whether your conduct amounted to gross misconduct, since you have given no details. But GM means that you are not entitled to notice, or payment in lieu of notice.

Even if you were to bring a claim for wrongful dismissal and were awarded the notice pay, this would have no bearing whatsoever on the rights and wrongs of the decision to dismiss. This is because the term 'wrongful dismissal' is simply a somewhat archaic term for 'breach of contract for failing to give notice', the ONLY consequence of which is that the employer would be ordered to pay you the outstanding notice pay.

You don't have much luck with employers, do you?

D

Mischa8

zzzLazyDaisy wrote: »

OP, I am sure you know by now that if you do not meet the minimum qualifying service requirements, the employer can dismiss you for any reason or no reason at all, provided they do not breach discrimination laws.

There is no requirement to follow a formal disciplinary procedure, although most prudent employers will at least have a meeting with the employee to ensure that there are no underlying issues that might result in the dismissal being exempt from the minimum service rule, before making the decision. This appears to be what happened in your case.

The fact that you appear to have acknowledged the concerns and attempted to explain them suggests that there was a reason for the dismissal, unrelated to race. Without more information you would struggle to get a race discrimination claim off the ground.

It is impossible to say whether your conduct amounted to gross misconduct, since you have given no details. But GM means that you are not entitled to notice, or payment in lieu of notice.

Even if you were to bring a claim for wrongful dismissal and were awarded the notice pay, this would have no bearing whatsoever on the rights and wrongs of the decision to dismiss. This is because the term 'wrongful dismissal' is simply a somewhat archaic term for 'breach of contract for failing to give notice', the ONLY consequence of which is that the employer would be ordered to pay you the outstanding notice pay.

You don't have much luck with employers, do you?

D

I can never work out if OP has bad luck or he is a troll.

Who on earth would go into so much detail if not a troll?!

I suspect we will see protestations of innocence and abuse directed at posters who dare to disbelieve him!

I think he messes up big time prob looks at !!!!!!, has attitude problem etc, doesn't learn so no wonder employer after employer simply want to get rid of OP.

zzzLazyDaisy

I think he is a troll too. That amount of very detailed info almost never comes out in the first post, and it reads too much like an essay question of the 'this is the situation; discuss' type.

But I often answer troll questions because genuine people read the forums and they might just get some useful information.

Mischa8

Too much info for me personally to be a troll

But I think he likes the attention and maybe part of his posts are somewhat true.

Good on you advising people. I'm not a few of the employment boards' posters' favourite person I know that and not lily white myself with employment record but I like to see justice being done and dislike as most of us do unscrupulous employers who treat employees unfairly!