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  • FIRST POST
    • mica2
    • By mica2 12th Mar 18, 12:02 AM
    • 50Posts
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    mica2
    Fiance dismissed for gross misconduct
    • #1
    • 12th Mar 18, 12:02 AM
    Fiance dismissed for gross misconduct 12th Mar 18 at 12:02 AM
    I'm requesting advice for my partner. He just got dismissed from his much loved job and is too upset to deal with anything. Sorry if this is long and complicated.
    He worked at a dog day care centre as a driver and last month was suspended after he made a couple of silly errors. They are saying it was gross misconduct but I think they are being harsh. He was under a lot of pressure and stress at the time which led to a lapse of thinking. He left some dogs unattended for 3 minutes but they were in sight of other staff members. His boss is asking why he didn't call the site manager to report it, he said he used his initiative and experience to judge that they would be ok and that he had told his colleagues to go attend to them. The other mistake he made was he forgot to take 2 dogs out of his van to drop off at the centre, but he realised quickly when he was on his next collection and kept checking on them to see if they were ok. Again his boss wanted to know why he didn't call them. I don't see how calling his boss would have changed the fact that the dogs were in the van for longer than usual, which is their issue. My fiance argued that sometimes he can be stuck in traffic for over 3 hours and not be able to check on the dogs' welfare but then they contradicted themselves by saying sometimes things are out of our control? So it seems to be fine sometimes for this to happen if it suits them!
    I am so angry with their behaviour. They didn't give him a verbal warning plus his English isn't great as he is from another country and I'm worried he misunderstood things that was discussed in his disciplinary. He has been a very loyal employee having worked there over 5 years without a day off sick. The last 5 weeks he was made to train a new driver everyday and most of the time never had a lunch break so he was exhausted. That day he was also stressed because he recently had an accident at work where he chased after a dog but broke his knee and was due to have leave for surgery, which they gave him a month off for but he wasn't able to walk properly and was in pain and had been waiting months for the surgery due to his employer not allowing him the time off for surgery straight away. They decided to suspend him the day before he was due to leave for surgery so when he returned they told him he was dismissed. Also, his own dog had recently broken it's leg and was in the process of treatment which was stressing him out and also his father recently passed away. I'm wondering if he has a case because as an employer they did nothing to control stress levels which I believe played a part in his lapse of thinking at work. (Maybe also the injury from his job is something else to pursue??)
    Also, he told them that he witnessed other colleagues making the same mistake as him by leaving dogs unattended but nothing was ever mentioned to them. I'm wondering if him having so much time off for his knee operation might be why they want to get rid of him?
    I'm glad he's not working there now as they have been treating the dogs and staff badly and just seem interested in growing the company and making money. There is a high staff turnover too.
    What do you suggest? I know his clients will be really upset and angry, most of them have said they would leave if he left as they value him so highly. His boss has offered him excellent references and 6 weeks paid leave.
Page 2
    • shortcrust
    • By shortcrust 13th Mar 18, 6:47 PM
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    shortcrust
    This doesn't sound like gross misconduct to me.

    The Employment Tribunals generally only allow gross misconduct dismissals in situations where the misconduct has been deliberate. Carelessness/negligence is almost never enough to constitute gross misconduct (as opposed to regular misconduct).

    Gross misconduct is really a very high bar. If the employer dismissed for gross misconduct over this, it does sound like a strong case could be made for unfair dismissal.

    The employer could try to claim that they were entitled to dismiss for regular misconduct. Yet, it doesn't sound like any attempt has been made to follow a fair procedure or comply with the ACAS rules on misconduct dismissals.

    All in all, it is sounding like there is a legal dispute if he wanted to pursue it.

    That said, 6 weeks paid leave with excellent references is not a bad deal. So it could be worth taking. When people are genuinely dismissed for gross misconduct they get nothing.
    Originally posted by steampowered
    Really?! I can think of loads of jobs and loads of situations where carelessness and negligence would be very much a case of gross misconduct. I can think of a few where it would land you in prison.
    • ampersand
    • By ampersand 13th Mar 18, 6:50 PM
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    ampersand
    ...which is not what mica2's post is about.
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    • Fireflyaway
    • By Fireflyaway 13th Mar 18, 6:53 PM
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    Fireflyaway
    I've been in my job just under six months and am finding behaviours that would have been dealt with using a quiet reminder to be more careful / don't do it again etc in my old workplace, result in final warnings and dismissals where I am now. Last week a very new person ( been there 1 week) made a mistake and was fired on the spot. So different places have different tolerance levels.
    If he has been there 5 years with no incidents I'd appeal. Does anyone in the company not like him or is a bullying type of person who likes a power trip? If other people have done similar and not been punished could there be some discrimination here? I'd write it all down and present the facts. Apologise but point out the 5 years with no incidents. Agree to extra development or training. Emphasize he loves the job. I'd say firing is over the top.
    • shortcrust
    • By shortcrust 13th Mar 18, 7:32 PM
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    shortcrust
    ...which is not what mica2's post is about.
    #
    The Moneysavers' Arms is open for general discussion.
    Originally posted by ampersand
    I'm not sure who you're talking to but my last post was very much on topic. Regardless, the forum would be a very dull place indeed if we headed off elsewhere every time a topic wandered a bit (as they do tend to do). I'm quite happy sticking with discussing things here.
    Last edited by shortcrust; 13-03-2018 at 7:35 PM.
    • steampowered
    • By steampowered 13th Mar 18, 8:52 PM
    • 2,488 Posts
    • 2,408 Thanks
    steampowered
    Really?! I can think of loads of jobs and loads of situations where carelessness and negligence would be very much a case of gross misconduct. I can think of a few where it would land you in prison.
    Originally posted by shortcrust
    I completely understand why you say that, but that's not quite what the courts and Employment Tribunals say 'gross misconduct' means.

    In law the word 'gross' means something very specific. The law makes a clear distinction between 'misconduct' and 'gross misconduct', that is not always obvious to laypeople. 'Serious misconduct' and 'gross misconduct' are not the same thing.

    A good example is this case https://www.personneltoday.com/hr/case-of-the-week-sandwell-and-west-birmingham-hospitals-nhs-trust-v-westwood/, which concerned a nurse who literally wheeled an unwell patient out of A&E and left them outside of the hospital. The nurse accepted this was a "serious failure of professional judgment", yet she still won an unfair dismissal claim as it wasn't enough to constitute gross misconduct.

    Feel free to hit me with your examples, but if they are simply cases of serious negligence or carelessness, they would be misconduct but would not stand up as 'gross misconduct' if challenged before a Tribunal.

    This is why, in cases concerning serious employee negligence, a well advised employer will sack the employee for misconduct, send them on gardening leave (or suspend them with pay) and pay out their notice period.

    Sacking someone for gross misconduct is really easy to challenge in Tribunal, unless it was something very obviously deliberate like punching someone or stealing.
    Last edited by steampowered; 13-03-2018 at 8:55 PM.
    • shortcrust
    • By shortcrust 13th Mar 18, 9:01 PM
    • 1,874 Posts
    • 2,730 Thanks
    shortcrust
    I completely understand why you say that, but that's not quite what the courts and Employment Tribunals say 'gross misconduct' means.

    In law the word 'gross' means something very specific. The law makes a clear distinction between 'misconduct' and 'gross misconduct', that is not always obvious to laypeople. 'Serious misconduct' and 'gross misconduct' are not the same thing.

    A good example is this case https://www.personneltoday.com/hr/case-of-the-week-sandwell-and-west-birmingham-hospitals-nhs-trust-v-westwood/, which concerned a nurse who literally wheeled an unwell patient out of A&E and left them outside of the hospital. The nurse accepted this was a "serious failure of professional judgment", yet she still won an unfair dismissal claim as it wasn't enough to constitute gross misconduct.

    Feel free to hit me with your examples, but if they are simply cases of serious negligence or carelessness, they would be misconduct but would not stand up as 'gross misconduct' if challenged before a Tribunal.

    This is why, in cases concerning serious employee negligence, a well advised employer will sack the employee for misconduct, send them on gardening leave (or suspend them with pay) and pay out their notice period.

    Sacking someone for gross misconduct is really easy to challenge in Tribunal, unless it was something very obviously deliberate like punching someone or stealing.
    Originally posted by steampowered
    Thanks, genuinely informative and interesting.
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