Help please- partner dismissed..

[justaname]

My partner has worked in a certain supermarket for over 6 years. She had an unblemished record, without even 1 day off in that time, no warnings verbal or written etc for anything.

On the 15th of Dec she followed incorrect procedure refunding a customer. The customer had an item which she wanted a refund for, it had changed price since and scanned at a different amount. When this happens the staff have to dig out the original item code to process the refund, something very time consuming. It was a busy day and she did something that the other supervisors (as she is) usually do: She scanned the item 3 times to be able to refund the correct amount (this in itself was not a problem apparently, the district manager said that is ok), then put the cash difference between '3 x item' and 'Actual refund that she gave to the customer' to one side (here lies the problem, the money should have stayed in the till and she should have informed a manager straight away of the irregular refund apparently). All the supervisors have been doing this whenever the district manager is instore to avoid the till showing as being up and having to explain the discrepancy. I asked her if she knew that seemed wrong and she said she knew but all the other supervisors do it so she just followed suit, not wanting to get in trouble.

 

So she had put the £35 in her locker (as the other supervisors do) to be sorted out later with the store manager after the district manager had left. However, the district manager noticed the same item refunded x3 on her till and asked her about it. She tried explaining and immediately went and got the money from her locker. The district manager was not happy and saw it as 'innapropriately having company cash in employees locker', and gave her an appointment for a discipliniary on the 19th. She had no intention of stealing that money.

She attended the discipliniary and again tried explaining but 5 days later on xmas eve, she recieved a letter saying she would be dismissed for innapropriately having company money in her locker.

 

I am helping her write an appeal letter today (she had 5 working days from date of dismissal to appeal), but I found this forum late last night and would really appreciate some help. The stress makes it so difficult- she lied to her family on xmas day about it as she did not want to worry them. We may lose our home. She is pretty traumatised, she has worked there for 6 years and not made one mistake, all she did was something the other supervisors told her it was ok to do. She was not stealing, it was completely innocent on her part. She was just trying to get through a very busy day. She didnt even properly understand why she put it in her locker, apart from 'the other supervisors do that'

 

I hope I have explained what has happened ok, I will be on this forum all day until the last post to send off the appeal, I kind of know what she needs to say but would really appreciate some help in general.

 

Thankyou

[diamondgirl]

Hi

I'm so sorry to hear of your plight but unfortunately I'm able to offer any help on this. I'm sure someone will be along soon who has the knowledge with regards to employment. Does your partner have a contract? Is there anything in the contract about dismals for whatever reason?

I"ll click on for the site team who may be of assistance.

DG

[jansus]

Is your partner a member of the union - they should be able to provide legal advice. Also She may get help from the ACAS site who have a free helpline.

 

I agree her previous employment record should be taken into account and also she may need the support of colleagues to confirm that this proceedure had been carried out before by supervisors. However I would suggest that even if it had and she carried this out in good faith - does it not seem slightly odd to remove any monies from a till?

 

It seems to me that a can of worms had been opened and that the others involved have not come forward to support her as they also surely would be subject to disciplinary action?

 

 

I think she definitely needs some legal advice quickly. did she have any union representative or another colleague with her at the first meeting?

[jansus]

By the way - on previous occasions when this has happened was there an additional transaction rung through on the tills at the end of the day when the money was returned to the till? If so she could show that this was "normal proceedure" at that branch. Or was the money taken straight to the office and an entry made that way?

 

One way or another there must be a record of it happening before to back up her defence?

[justaname]

Hi- thanks for the replies.

I will ask her those qestions and update asap... it is bank holiday monday today so I am using the extra day to consider the facts more.

 

Here is a copy of her contract:

 

and dismissal letter:

Edited December 28, 2009 by justaname

[elpulpo]

What a strange letter!?

A supermarket (presumably one of 'the big ones', we get plenty on here!) and they can't spell!

This seems very strange- they've not accused her of theft, just 'inapproaite(sic) cash procedures'.

And they've dismissed for a 1st offence - but if this constitutes Gross Misconduct, why are they paying her in lieu of notice?

After this incident occured on the 15th, did they suspend her, or did she continue working as a supervisor? (handling money?)

Was she accompanied to the Disciplinary?

[justaname]

Hi-

Yup one of the big ones...

She was suspended on full pay on the spot, she was accompanied by a fellow member of staff to the discipliniary as a witness, they were not permitted to contribute.

I agree, what she did was wrong, she knows that, but there was no malicious intent and she has a better than spotless record. It says in her contract a serious misconduct gets a final warning, with no improvement within 12 months getting a dismissal.

She does not deserve this.

[madari]

Unless your partner can find witnesses to support her claim and that is to say that it was `Common practice` to do what she did then i am afraid you have not got much of a case.

 

Good luck.

[elpulpo]

It strikes me that they simply didn't examine any alternatives to dismissal, which is very unreasonable.

Have you submitted a letter requesting an appeal?

I think you've got strong grounds to get this turned over.

[justaname]

Thankyou for your opinions- I have yet to submit the letter but am doing it today. I have considered getting my partner to phone her (ex?)fellow employees and discuss the dismissal, recording the call. If she can get them to admit on the phone that other people also did what she did and it had become common practise then that could be used as evidence. Returning to work then would be awful for her though as she would have 'betrayed' them.

 

The store manager was complicit in this though, he himself has been responsible for this practise becoming the norm, and it is he whom has to 'sort it out' at the end of the working day when other supervisors have done it.

 

I am considering confronting him myself and forcing him to admit to the district manager what has been going on. Why should my partner get all the blame when her superior has directly authorised such action?

 

Im getting so angry now, she has been having panic attacks over christmas. She has been so loyal to them- if anyone deserved a 2nd chance it was her.

Edited December 29, 2009 by justaname

[cynic09]

Pretty common within the retail trade, however a template letter of dismissal is pretty poor.

Best defence in this is bringing forth witnesses to corroborate that this is in fact common procedure albeit it a particularly silly one from the companies point of view.

If however no witneses are produced it's rightly or wrongly an open and shut case of gross misconduct.

Little milage in the pay in lieu thing I'm afraid, its cheaper to do that than have to deal with an ET case claiming wrongful deduction from wages.

Again a pretty common practise with big supermarket chains.

Your partners companion should have been able to take part in the meeting tho, the law allows this and most supermarket HR folk are aware of it

[elpulpo]

Please don't confront the store manager. You could get yourself in serious bother, possibly criminal bother.

You'd almost certainly scupper any chance of getting this turned over.

Not sure that resorting to covert phone recordings is a good idea either. Approach this for the time being as if she will be returning to work.

 

What concerns me here, Cynic, is that the employer doesn't seem to have given any consideration to alternatives to dismissal here.

Granted, it could be construed as GM, but that doesn't automatically equal dismissal.

For a dismissal to be fair, the employer should examine all factors in a case (previous good service, precise circumstances etc) and consider all alternative sanctions.

I don't feel they've done that here.

She's been very daft. I don't think I need to tell her that putting company money in her locker is a very silly thing to do.

But she's been transparent about it, went and got the money from her locker and explained why. She has several years unblemished service, and they haven't accused her of theft.

And surely, if they investigated the matter properly, they would discover that this had become a standard procedure-more the store manager's fault than hers.

I don't think that a final written warning, possibly a demotion to a position that doesn't involve handling money, would have been too lenient.

[justaname]

Exactly my feelings Elpulpo

[kwaks]

Have you asked the company to return your wifes property to her ? Namely the locker. Or is it the case that the locker belongs to the store? So the charge is she "misapproiately put company cash in a company locker", kinda looks like a flimsy charge when the facts are corrected.

 

I assume that your wife had a pin number to sign on to do a refund? If this is the case then the supermarket must be able to track any 3xrefunds she has done in the past with the subsequent "sale" of the balance back into the till. They should be able to do this for all employees which will show this to be common practice, and all will be time/date stamped to show the delay between the original refund and the funds going back in.

 

Looks to me that this charge has been upheld purely on face value with no investigation at all, even a simple look at the audit records should spot these overages coming in pairs on a regular basis after a price drop.

 

My appeal would highlight the lack of investigation into what has become common practise.

[kwaks]

Just re-read that letter. I am even more shocked by what it says.

 

So she was sacked as the hearing came to the decision that "your conduct was still unsatisfactory and that you be dismissed."

 

Yet your wife had only been told that this practise was wrong once, she did not repeat the practise again (suspended so couldn't happen), so how can they say "was still unsatisfactory".

 

In fact the actions of this supermarket offend me, as I have invariably am/have been one of their customers then they are guilty of General Misconduct by their own definition.

[justaname]

Ive just found out that the person my partner was allowed to take to the discipliniary was explicitly and categorically told beforehand he was not allowed to speak at all during it.

If he was allowed then doesnt that make it a sham discipliniary?

Edited December 29, 2009 by justaname

[justaname]

btw thankyou for alll the input so far

[kwaks]

Ive just found out that the person my partner was allowed to take to the discipliniary was explicitly and categorically told beforehand he was not allowed to speak at all during it.

If he was then doesnt that make it a sham discipliniary?

 

 

Not uncommon, especially if its a colleague. They are there to hear what happens and be in a position to offer moral support and advise during the break whilst the findings are discussed.

[elpulpo]

Ive just found out that the person my partner was allowed to take to the discipliniary was explicitly and categorically told beforehand he was not allowed to speak at all during it.

If he was allowed then doesnt that make it a sham discipliniary?

That goes against The 2009 ACAS Code Of Practice.

The person accompanying someone at a Disciplinary Hearing should be allowed to address the hearing and confer with the person facing the Disciplinary.

The only thing they can't do is directly answer questions on the persons behalf.

What would have happened if your wife had a union rep? Would they have expected them to sit there and say nothing?

More ammunition for the appeal, I think.

[justaname]

Allow the employee to be accompanied at the meeting 13. Workers have a statutory right to be accompanied by a companion where the disciplinary meeting could result in

 

• a formal warning being issued; or
  
• the taking of some other disciplinary action; or
  
• the confirmation of a warning or some other disciplinary action (appeal hearings).
  

14. The chosen companion may be a fellow worker, a trade union representative, or an official employed by a trade union. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker.

15. To exercise the statutory right to be accompanied workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However, it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.

16. The companion should be allowed to address the hearing to put and sum up the worker's case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker's behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case.

It would appear you are right. Thats pretty clear.. Should she include this on the appeal letter though or bring it up at the appeal itself? If she lets them know before they might just offer to let her have a companion at the appeal and try and shrug it off?

Im worried- I think we need legal help but we dont have it covered by any insurance-no union-can't afford private... All thats left is self defense isn't it?

[elpulpo]

How long has she got before she needs to get the appeal letter in?

Can't be long now. We need to get the letter together. It doesn't have to be comprehensive, just an outline of the grounds of her appeal.

And yes, she should bring this up, absolutely. It's too late at the appeal to let a rep speak, that should have been allowed at the disc.

 

Don't worry about legal help for the time being, you can't take a solicitor to an appeal anyway. And solicitors cost a lot of money. You don't need one to launch an effective appeal.

[justaname]

Thanks- today was the 2nd working day, counting christmas day as being the 1st-which I think is a public holiday anyway. We are going to post it special del tomorrow so all's ok there...

Thankyou again

[jansus]

I really think it would be worth you contacting ACAS when you can. There is unfair dismissal and wrongful dismissal as well. I fought for my daughter on the second an got an offer of re-employment plus an open reference - after being told initially I had no chance.

 

Worth keeping up the fight a bit longer I feel.

 

 

Not sure if this helps or not??????

 

Wrongful Dismissal should not be confused with Unfair Dismissal, Wrongful Dismissal is based on contract law. Any claim for Wrongful Dismissal will therefore mean looking at the employee's employment contract to see if the employer has broken the contract.

The most common breach is where the employee is dismissed without notice or the notice given is too short. Obviously either party can end the employment relationship if they give the necessary notice. This will either be the legal minimum or what is stated in the employee's contract.

However, the employer can justify dismissing the employee without notice (Summary Dismissal) if the employee commits a serious breach of the contract, for example theft. The employer does not have to have proof of the theft, suspicion is enough. The employer can also rely on evidence that is only found after the dismissal.

Another example of wrongful dismissal is a failure by the employer to follow a contractual disciplinary procedure.

Wrongful dismissal claims can be brought in the Employment Tribunal, county court or High Court depending on the value of the claim

Edited December 29, 2009 by jansus

[cynic09]

Beat me to it as usual elpulpo. The role of the companion should certainly be mentioned at appeal, together with ACAS guidelines, not all supermarket HR folk or managers have too much contact with 21st century reality.

The common practise thing is the way to go...............money in your locker is a smoking gun in retail generally

[madari]

Tell them NOTHING and let them make as many mistakes as possible,otherwise they will cover all their tracks [they will lie thru their teeth make no mistake] and leave you with no ammunition if the appeal against dismissal was to fail.

 

Good luck.....