Help please- partner dismissed..

[cynic09]

If you consider the appeal being held 75 miles away is a big issue then you should raise a grievance about it. You certainly should raise a formal grievance about the original companion being forbidden to speak with you at the risk of losing thier job

[elpulpo]

I think incorporating those points in the appeal would be easier. Just start the appeal statement by saying, 'bear in mind I shouldn't have to be presenting my appeal in this form to start with. IMO, you're being deliberately obstructive to the appeal process by insisting it be held at a distant location. This is completely unreasonable, and I'm sure an ET will agree with me.'.

[justaname]

Thanks- points duly noted.

ACAS seemed to think that those points were more suited as appeal grounds, rather than raising a grievance, seeing as she is no longer employed by the company.

[justaname]

Hi guys, been a while again, sorry- I hope you've all been ok.

 

To recap- partner was dismissed for following 'innapropriate cash procedures', although she was acting in a way that had become common practise at the store she worked in and was acting in good faith at the time. There were procedural mistakes in the disciplinary process they used against her, and their unwillingness to hold her appeal culminated in her submitting a written statement of appeal.

 

Here is the written statement she submitted:

 

Dear XXXX,

 

This is my written statement of appeal for my dismissal which occurred on 24/12/2009, for the allegations of “inappropriate cash procedures”. Please note that I am submitting a written statement as I am unable to attend a venue 75 miles away from where I live, and [the company] have been unable to reconvene at a more accessible venue.

 

Reasons for my appeal: (Please note these may not be exhaustive, as further questioning or investigation may result in more evidence becoming apparent, such as witness statements)

 

My Track Record

 

I have held my position within the company for 6 years, and I have never been issued an informal warning, a formal 1st warning, or a formal final warning for any matter. I have a proven track record of being reliable, trustworthy and honest with the company.

 

Circumstances of the Allegation

 

When the matter first came to light with [the area manager], I was completely open and transparent about it, I did not try to conceal any facts as there was no malicious intent on my part.

Under supervision of Mr XYZ, Store Manager, it had become common practise to return the tills to ‘even balance’ when they were up by more than £1 or so, then give the money to Mr XYZ to keep in a pot in the office. He approved this procedure, other supervisors carried it out, and it had been going on for a while so it did not seem inappropriate to me. On the contrary, it seemed appropriate to do as my superior and fellow supervisors approved, and did. It was doing this that resulted in my disciplinary.

 

Procedural Concerns

 

When I was first questioned by [the area manager] with regards to the incident, I informed him that what I had done had become normal procedure in the store, yet there was no investigation into this and instead I was summoned to a disciplinary hearing which directly resulted in my dismissal. I feel there should have been a full investigation into this matter before considering my dismissal.

The above point was also raised in my disciplinary hearing, yet still no investigation was made.

My right to a fair disciplinary was also obstructed by the fact that my companion, Mr ABC, a fellow employee, was told beforehand that he was not allowed to talk, or contribute at all, in any form, during the disciplinary hearing. According to the ACAS code of practise, section 16, this is incorrect procedure. Note:

 

“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.”

 

Had he been granted these abilities, I feel he may have been able to affect the outcome of the hearing, and I may not have been dismissed.

 

I hope you consider the above points fair grounds for appeal, and that my position can be reinstated without prejudice.

 

I would appreciate your consideration and reply within 28 days of receipt of this statement,

 

Yours sincerely,

 

Miss Unfairly dismissed

 

 

We have now received a letter, today, from the company, saying:

 

Dear Miss S

 

You are invited to attend a meeting to discuss your appeal on the 20th Feb (this Sat)......[snip]

This seems odd to me, whilst a good sign in a way- it means they are taking it seriously, it doesnt seem right that rather than say either yes or no to her appeal, they would like to 'discuss' it in an intimidating environment. How does 'discussing her dismissal' fit into normal dismissal procedure? It is not her appeal in itself, that was the written statement. She doesnt want to go to a ad-hoc meeting as it were, without any representation or advice, and get her case undermined through intimidation in 'a back room'.

 

What should we do? Seems very odd to me...

Thanks once again!

[elpulpo]

Is that all they've said, (second quote above)?

I'd want to know what they want to discuss. Write back and state that if they require further information about the matter they need to write requesting this and she'll respond in writing.

Where are they suggesting this meeting be held, Timbuktu? Vladivostok?

[elpulpo]

Welcome back, by the way.

[justaname]

That was all that was said in the letter, besides the venue- which is in this country (surprisingly) and actually in the original disciplinary venue which is easy for us to get to.

But that is all that was in the letter: "we would like to discuss your appeal, at this venue. Please confirm your attendance by calling 123456789"

Writing back does seem more appropriate thinking about it...

[justaname]

Thanks btw

[elpulpo]

I'd write / email. When things come to D&G hearings, the party proposing the meeting should give some general intimation of what they wish to discuss.

 

They're taking the p*ss really. The original hearing was held 75 miles away, which was nothing other than deliberate gamesmanship, and now they want another meeting back where it should have been held in the first place.

Things might be looking up. Could be an offer of reinstatement. Don't hold your breath though.

[cynic09]

This could be argued as constituting an appeal hearing, in any case it is a disciplinary hearing of a form and normal rules regarding representation should apply, failing that, take a tape recorder

[justaname]

I was thinking that could be their reason for holding it; so come tribunal they could say they have held an appeal hearing.

However they have not stated that it is an appeal hearing, and they have not informed her of her right to be accompanied to this meeting. They have stated it is to 'discuss her appeal'- not to make it. It seems odd to me, although admittedly I have little experience of these situations!

[justaname]

Sorry to deviate from the original topic, but I have a question regarding her PILON. She has been given 1 weeks PILON, and they are insisting that is all she is due. I have read from the .gov website that the statutory notice period is 1 week for each complete year. Doesnt that mean she should be due 6 weeks PILON (as she has worked there for 6 years), is that correct?

Thankyou...

[elpulpo]

Sorry to deviate from the original topic, but I have a question regarding her PILON. She has been given 1 weeks PILON, and they are insisting that is all she is due. I have read from the .gov website that the statutory notice period is 1 week for each complete year. Doesnt that mean she should be due 6 weeks PILON (as she has worked there for 6 years), is that correct?

Thankyou...

Yep. That's right. I didn't realise she'd received PILON.

This poses questions. If she was dismissed as a first offence, you'd think that offence constituted an act of Gross Misconduct. So, how come they're paying her PILON (albeit the wrong amount)? If it's GM, they'd summarily dismiss, Shirley?

[cynic09]

Worth pointing out at this "disccussion" I'd say.

Regardless of what they seen fit to put in the letter "discussions" after dismissal, can only really be appeals thus covered by ACAS guidelines regarding accompanyment.

If your EX employer wants to "discuss" anything other than an appeal and chuck ACAS guidelines out the window then taking a lawyer along would seem appropriate.

They can hardly use your contract or the content of the 1999 act to object if it isn't really an appeal hearing???????

[justaname]

Well I have spoken to ACAS this morn, they recommended calling the company to confirm if it is part of the appeal process and hence covered by ACAS guidelines, and to ask what exactly will be discussed-the purpose of the meeting.

Im not sure thats the right thing to do though, seeing as she doesnt have a representative available now, we cant afford a solicitor, and dont have a legal aid one available I am inclined to think maybe we should only call and ask what is to be discussed at this meeting-but not whether it is covered by ACAS guidelines. Then as she has not been informed that it is (covered), and will consequently turn up with no rep, it may work in her favour that she was not informed should the outcome be undesirable. Confirming that it is covered by ACAS guidelines is just correcting their mistakes for them surely?

Whatever happens she will be recording it covertly.

[elpulpo]

Good thinking. I agree.

[justaname]

Thanks!

Guess I'll call them now then- I'll let you know what they say....

[cynic09]

Personally I'd be inclined to put the tape recorder on the desk and advise that in the absense of a rep I'm recording the meeting.

particularly if there were two or more people present. It is entirly proper to make notes at a meeting, hard to do on your own.

Sometimes leads to short quiet meetings just the same.

The recomerndation from ACAS appears fair to me........establish the purpose of a meeting prior to attendance, you already have thier written procedural error.

[justaname]

Well they were typically crap on the phone, I asked what the purpose of the meeting was so she can prepare and was told- "didnt she want a meeting" I said "well she wanted an appeal hearing"

Her: "yes well it will be her appeal against the decision made [she didnt say which decision here]"

Me: "Ok well I believe you have her written statement of appeal, what further information do you require?"

Her: "I dont know exactly I imagine it will be all about that"

Me: "All about that? Can you be more specific?"

Her: "No, Mrs T (appeal-hearer) is not here until next week- we rescheduled this a few times didnt we?"

Me: "Her appeal was rescheduled once, will Mrs T be present at this meeting?"

Her: "Yes, it will just be Mrs T and Mrs Unfairly-Dismissed at the meeting, and obviously I dont know if theyll bring in a witness or whatever [she didnt say who might bring in a witness]"

Me: "Ok. Thankyou. Bye"

Her: "Bye"

 

So it was pointless calling them really they didnt say what questions they wanted to ask- I recorded it just for the sake of it though.

 

Back to the topic of the PILON quickly, I requested (and have received) a copy of her leavers pay breakdown. All she received was 8 days holiday pay that she had left to claim. No PILON, not even 1 week as they said. I believe we should be making an informal request now for the remainder of her entitlement, then proceeding with an unlawful deduction of wages claim- is that right?

 

Thankyou

Edited February 18, 2010 by justaname

[elpulpo]

Aye, they sound like a useful bunch.

I think the thing to do is attend and see what happens. Don't say anything, just see what they have to say. If they want to get into a debate, just refer them to the appeal statement.

I think they might be looking to backtrack.

 

Was it established if she was summarily dismissed for Gross Misconduct?

If they said they'd pay notice, they pay the notice. Make the request formal, put Letter Before Action across the top of the letter.

Edited February 18, 2010 by elpulpo

[justaname]

There's no mention on her dismissal letter of summary dismissal or gross misconduct- if it helps her disciplinary was the 21st of Dec and that was her last day of service apparently, the letter says: "It is decided that your conduct was still unsatisfactory and that you be dismissed- The company does not require you to work your contractual notice period. You will therefore receive payment in lieu of that notice, days already worked [etc..]"

 

It's actually an ACAS template letter from Acas - Appendix 3 - Sample letters Mutilated a bit-but definitely from there. So they do know that ACAS exist

 

If summary dismissal and gross misconduct are terms that have not been mentioned, and she is (supposedly) receiving PILON, then I guess it can't be GM... can it?

[elpulpo]

If they said she'll get PILON then they pay the entire length of her notice. How much notice did her contract say she was entitled to?

Bear in mind, there has to be a contractual provision for paying PILON. If it's not in her contract, they should have allowed her to actually work her notice, or asked her agreement to be paid PILON.

[justaname]

In the 'personnel policies', the closest thing to a contract we have, there is nothing of notice periods.

[elpulpo]

She should have been provided with a 'Written statement of particulars of employment', within 2 months of the start of her employment. This is a basic statutory requirement. It would include place of work, hours, pay, outline of duties, notice periods etc.

She never received any such thing? If not, that's a pretty big cock-up for a supermarket chain to make.

One can claim 2/4 weeks pay at ET for their failure.

[justaname]

She started working there before I was living with her so I wouldnt know for sure, she has no recollection of receiving one. I think she probably did tbh, but has misplaced it (I know, I know...). Her contract has changed drastically since then though, her hours went up, as did her pay, and official title (from sales assistant to duty manager), should she have been issued a new one?