misconduct or gross misconduct

xyz111

Hi
i was working with employer full time doing technical work on small jobs then i joined another job full time l. i was able to deliver both jobs successfully without complaints. they were in same market but not direct competitors at least that what i thought.. now recruiter sent my cv by mistake to both listed as present employers.. one picked it up and they both spoke.. i was totally honest and in delivering jobs and did not see breach of contract due to dissimilar scale of market so did not see as conflict of interest..

please advise 

Dakta

what is your question?

First off, how long have you been in either job for? particularly the one airing concerns?

secondly, what does your contract of employment for the company raising the concerns say with regards to dual work?

My advice is to check if you have any legal rights at all (i.e been employed for more than 2 years, otherwise you're onto a loser right away as they can dismiss for anything that isn't a protected characteristic). 

Then, check your contract of employment. They will in a lot of cases specify their stance on being employed elsewhere as well. Are you acting in a manner that doesn't fall foul of your contract?

Two, there is also issues of conflict of interest with regards to services provided to other companies, even where a second employment is allowed (and this applies to me as someone with two jobs at the moment), have you followed company policy by declaring potential conflict of interests, or spoken to your manager about your second employment depending on what your contract states? In my case I am allowed to work elsewhere (my own little business) but I have to fill in a conflict of interest form and have manager approval who is aware of what I do and who for. Most places of work have something similar - has this been followed?

If they are in the same market, it's probably sufficient to justify an investigation at the least because it could very well be a conflict of interest, as company sensitive information may be at stake - whether you agree this or not, it's not really an unreasonable concern especially if you haven't been forthcoming.  You need to ensure you are acting in accordance of the terms of your contract, as if you have a proper contract it's very likely documented. 

There are a lot of other aspects that could be at play, for example anything relating to fatigue, or health and safety that working dual full time roles could impact which could actually cause your employer legal turmoil as well, so if I'm assuming right and neither company knew of each other until the recruiters error, then there are likely some valid concerns been raised. I'm sorry it can't be happier news but check that contract and see if you can self-determine if you're in breach.


Also, just as a side note, I'm not sure a dissimilar operation of scale would negate a conflict of interest allegation, if I understand you right - a small company can always benefit from inside information from a larger, and a large company can always benefit from a smaller, so I don't really rank that as a strong defence. If there is some more rigid split, such as completely different target customers, in different industries, in different areas and a customer for one wouldn't likely ever be a customer for another you could potentially raise it as a mitigation, but let's start with the contract. If you've done this on the sly and the contract says you can't, a defence will be difficult. 

Also, if you intend to fight this it may be worth asking for any documentation such as conduct policies, disciplinary policies and so forth - you might as well use some time to familiarise with these. 

General_Grant

xyz111 said:

Hi
i was working with employer full time doing technical work on small jobs then i joined another job full time l. i was able to deliver both jobs successfully without complaints. they were in same market but not direct competitors at least that what i thought.. now recruiter sent my cv by mistake to both listed as present employers.. one picked it up and they both spoke.. i was totally honest and in delivering jobs and did not see breach of contract due to dissimilar scale of market so did not see as conflict of interest..

please advise 

What do your contracts say about working for another employer?  Are you required to notify either?

xyz111

no where in contract it says i need to notify

first company worked on smaller scale projects and happy for me to do the design work and i got into. 

second company as consultant no to do specially duplicate activities as to first company

i did not deem they competed so a conflict of interest was present

i delivered both jobs successfully. first company did not ask for time sheet second company did and got without any issues. 

both companies were satisfied with progress and delivery. both managers i had good terms with.

do not think i had to notify anyone. i asked second company manager if i tried to notify him and he said that he would have said no..  

Dakta

Please can you just be a bit more clear in your posts as I'm struggling a bit 

So you have checked the contract and NEITHER state you need to notify for a second role?

When the second company manager said 'no' do you mean he did not need to be notified, or would he have said he was not happy with you working for another company?

Is it the second company or the first that is alleging gross misconduct, and what do their managers state?

How long have you been at the company that is alleging gross misconduct? 

xyz111

both spoke to each other and both alleging misconduct 

Dakta

...and again...how long have you worked for them?

It may be an academic point, because even if there isn't anything in the contract to say you can't work for two companies, given that they are effectively the same role and there may (despite your beleif at the time) be some overlap due to them being in the same market etc, there likely is some argument from either companies side that by you not being open about it and the risk of any data, techniques, company info etc you *may* (even if you haven't) have been able to share with another company constants a fundamental breach of trust. This alone may be (probably is) strong enough to warrant  an allegation of gross misconduct.

Hate to be brutal but I'd start considering new employment. 

xyz111

i did not need to notify 
the second company dealing with bigger projects often outsource their activities that i do for them to another smaller company (similar size to first company) and this external company provides same services to second company..

xyz111

to confirm the decision to suspend you from your duties based on the following allegations

• · that you are in breach of Clause xx of your contract of employment by being employed by a competitor xxx without permission, without the knowledge of your line manager and in such causing a conflict of interest, 

Dakta

How long have you worked for these companies?

xyz111

less than 2 years