Suspended from work pending investigation

[markl1987]

To be honest after today I wont put any hope in the appeal being successful, I work hard on preparing it and get it sent in asap and also start to look at the ET side of things too.

 

Although I am going to fight my corner and will progress this is far as I can do to clear myself its not going to get me back in a job that I enjoyed, wanted to progress in or get back all the hard work I have put in.

 

My record is spotless, not even been late, every review was outstanding although one thing I have got noted about my record and not sure if its even worth mentioning is that I never had my final review to complete my 12 months probation and never received anything to say that I was completed and now fully employed.

 

Search job sites is depressing me already!

[Pusillanimous]

It sounds like thiis happens all the time. Instead of owning up to the responsibility, the poor guy "in charge" is left is sacked, scapegoated and no probing questions asked of higher management. Cash handling is a Health & Safety issue and you were entitled to security.

 

Next step: appeal, even though it is likely a waste of time and then sue! Try to get witnessess amongst your mates while the iron is hot.

[Pusillanimous]

really struggling with giving any proof that I'm not responsible for the tickets being missing which accounts for an accounting irregularity which is gross misconduct

 

My rep said and I also think that the decision has been made already and it's just a process we are going through

 

Any fule kno' it is impossible to prove a negative. That you both had the impression the decision was already made should form part of your legal claim.

[markl1987]

So Im a good way through my appeal letter at the moment and Im wondering if it is worth going back to my rep to get his input on this or contacting the local office and asking for someone else to give me some support and help.

 

The rep yesterday was very negative and almost unhelpful. Yesterday when I was speaking to an colleague (ex colleague now) she mentioned that she wouldn't be surprised if he had been asked to help steer the disciplinary and I thought this to be just a one persons opinion but then Firstclassx has mentioned how the rep will back the company etc so now hearing it from someone else Im wondering a lot more.

 

I assume it is ok to send the appeal letter before I receive official notification of my dismissal, I want to get the ball rolling properly so I can submit the ET in time when needed

[Emmzzi]

wait for the notifiction and the written reasons so you can counter each of them logically.

[altobelli]

Hi markl1987, if at all possible I would take legal advice on this in conjunction with the appeal process.

 

One thing I would maybe look at is the possibility of getting an injunction to stop the company going ahead with the dismissal since they have offered no proof of their accusations and have not taken on board the points you raised in your defence. The grievance had all the appearance of being a foregone conclusion and based on some of the comments posted here, there is no reason to think that the appeal will be any different. Also, you have informed the police and they have little interest in pursuing the matter.

 

Injunctions are rarely sought, to a large extent because not many people know of their availability. But they are an option where dismissal could cause such damage to your reputation that it could fundamentally threaten your future career. A case like this, where you are being accused of a criminal offense with no evidence whatsoever that you benefitted financially, could be such an instance.

 

A lawyer would be able to advise you on the liklihood of securing an injunction and of its cost, but this might be an option worth looking at. At the least the threat of an injunction may make the employers carry out a more proper investigation than has been the case so far.

[lbruk]

Hi, sorry to hear that even with the evidence they have not come down on your side. It does seem that the decisions were made before you walked in. Your appeal will probably be a waste of time - but its a step you have to go though. Once you have written your appeal i would also download the ET1 form from the tribunal website and start to fill that in as best you can. I would advise going to the CAB for free advice and phone a couple of employment law solicitors that have free consultations - go in them with different questions to ask - you'll learn lots that way about various things. And of course we'll help all we can.

[firstclassx]

Thompsons Solicitors are very good at railway employment tribunals.

 

http://www.thompsonstradeunionlaw.co.uk/about-thompsons/our-people-employment-rights.htm

[Pusillanimous]

If the trade union guy was negative then, as you will need to be referred to Thomsposn via your union, don't hold your breath. High class lawyers, yes, but notorious for only taking on "high profile" cases.

[markl1987]

How long should an appeal letter be? I have a tendency to over write things as it is but don't want to put too much in the letter and risk it not being taken seriously but on the other hand don't want to miss any points out. I know that I can make sure I say everything in an appeal hearing but want to ensure my letter is correct and all aspects are covered

 

On a positive note I had a call from a member of staff today who, whilst some maintenance work was being completed and part of the desk dismantled, has discovered some old tickets that had fallen down gaps. She is going to check the dates on them and let me know in an hour or so and I can verify if they were from when I was working and the ones that are missing from my case, Im hoping they are the break through that could really help me out! Got my fingers and toes crossed that they match my shifts!

[firstclassx]

How long should an appeal letter be? I have a tendency to over write things as it is but don't want to put too much in the letter and risk it not being taken seriously but on the other hand don't want to miss any points out. I know that I can make sure I say everything in an appeal hearing but want to ensure my letter is correct and all aspects are covered

 

On a positive note I had a call from a member of staff today who, whilst some maintenance work was being completed and part of the desk dismantled, has discovered some old tickets that had fallen down gaps. She is going to check the dates on them and let me know in an hour or so and I can verify if they were from when I was working and the ones that are missing from my case, Im hoping they are the break through that could really help me out! Got my fingers and toes crossed that they match my shifts!

 

FIRST, get an e-mail or letter from that employee AS SOON AS POSSIBLE confirming that tickets have been discovered during maintenance work. It doesn't matter whether they are the missing ones or not, it tips the "balance of probabilities" back in your favour at an Employment Tribunal. This is a significant discovery, but only if you can get her to put this in writing. Possibly might need to call her as a witness to that, but statement for now. (Don't tell the employer this, just yet).

 

SECOND, write a lengthy appeal, but make sure everything is relevant. Don't mention the above point though, (you can do this at the hearing!). In addition to pointing out their failings, explain how it has made you feel, the fact you they have made out you are a thief/fraudster, defamation of character etc. Explain how much you loved your job, how it was a long and decent career, which has devasted you now these false accusations have been made against you. Don't mention any tribunals or anything though! Go nice and heavy on the "suggestion" though... add phrases like "breach of trust", "unfairly dismissed", "singled out", "defamation of character", "no police record of alleged theft/fraud", "wholly circumstantial" etc etc.

 

THIRD, remember, you've nothing to lose. You aren't an employee any more, so go to town on them. Make them feel your pain. I would recommend you grab an ex colleague to attend as a witness only, and forget the union representative. It is imperative you write or record the exact words and ask your witness to sign them, to confirm accuracy. Ask the employer to sign them too, if they refuse, write it down, and again, make sure your witness confirms this.

 

 

Regardless of outcome, I'd be doing two things, (even if you get your job back):

 

1) Write a "Letter before action" to the RMT, explaining you hold them liable for misrepresenting you; read their response, if not happy, issue a small claim against them for negligence leading to them predjucing a disciplinary outcome, say for £1000 or so;

2) Write a "Letter before action" to your employer, explaining that you hold them liable for "Defamation of Character", if not happy, issue small claim against them. (I'm not 100% sure, but an employment tribunal may be able to award this). Again for £1000 or so.

Edited September 20, 2012 by firstclassx

[becky2585]

Re 1) and 2) above - there's no basis for a claim against the union or your employer.

 

Without actually having the law on your side, bandying about idle threats, for compensation with no basis behind the calculation, will just make you look weak.

 

The tickets that have been found are the key to your appeal, so strong emphasis needs to be placed on that point!

[markl1987]

A now ex colleague is a rep for TSSA and he has offered his services to come with me and help me out wherever he can, the lady who found the tickets is going to do a statement for me and also see if she can have a look for anything else in the gaps where the work is being completed.

 

I have been through my main base station today and had everyone that I saw both on and off duty approach me and offer to help in anyway they can.

 

Im so grateful to everyone on here and to my colleagues/friends who are going out of their way to help me

 

I'll keep updating as and when things happen, thank you again

[Pusillanimous]

SECOND, write a lengthy appeal, but make sure everything is relevant. Don't mention the above point though, (you can do this at the hearing!).

 

It is a principle of good procedure to show the other party what evidence you will be using at the appeal. I would recommend sending them the evidence in advance. It works both ways: if they produce evidence at the hearing without having told you in advance of it, you have a point of complaint against the fairness of the hearing.

[Pusillanimous]

A now ex colleague is a rep for TSSA and he has offered his services to come with me and help me out wherever he can, the lady who found the tickets is going to do a statement for me and also see if she can have a look for anything else in the gaps where the work is being completed.

 

I have been through my main base station today and had everyone that I saw both on and off duty approach me and offer to help in anyway they can.

 

Im so grateful to everyone on here and to my colleagues/friends who are going out of their way to help me

 

I'll keep updating as and when things happen, thank you again

 

To save your colleagues having to write out a statement, why not offer to record whatever they have to say and that you will get it transcribed later? Glad you have found a union person on your side.

 

I note he is ex-collegue, but current TSSA. Cool!

Edited September 20, 2012 by Pusillanimous

[lbruk]

Glad to hear some things seem to be starting to look up.

 

Firstly you appeal letter.

 

Keep it short and sweet - you appeal the decision to dismiss you on the grounds that there was no direct evidence to tie you into a gross misconduct event. that's pretty much it really. As for the new evidence. I would definitely produce it before the meeting. You want it to be a frank discussion about the evidence that was presented to you (or lack of) and then what has been found subsequently by someone that has been "cleaning" where as checking the workstation thoroughly would in my been part of the investigation that the previous meeting should have had. This lack of investigation would then lead me to question other parts of the process because if they miss this one point - then who is to say that they didn't. It brings the the balance of evidence in your favor. Certainly - DO NOT threaten them with compensation/legal action etc etc in this meeting. I have found that threats of action get you nowhere.

[firstclassx]

It is a principle of good procedure to show the other party what evidence you will be using at the appeal. I would recommend sending them the evidence in advance. It works both ways: if they produce evidence at the hearing without having told you in advance of it, you have a point of complaint against the fairness of the hearing.

 

The railway aren't interested... it gives them time to "interfere".

 

This will almost certainly be rejected.

[transient]

Glad to hear some things seem to be starting to look up.

 

Firstly you appeal letter.

 

Keep it short and sweet - you appeal the decision to dismiss you on the grounds that there was no direct evidence to tie you into a gross misconduct event. that's pretty much it really. As for the new evidence. I would definitely produce it before the meeting. You want it to be a frank discussion about the evidence that was presented to you (or lack of) and then what has been found subsequently by someone that has been "cleaning" where as checking the workstation thoroughly would in my been part of the investigation that the previous meeting should have had. This lack of investigation would then lead me to question other parts of the process because if they miss this one point - then who is to say that they didn't. It brings the the balance of evidence in your favor. Certainly - DO NOT threaten them with compensation/legal action etc etc in this meeting. I have found that threats of action get you nowhere.

 

Also think this is the best way forward for now

[transient]

The railway aren't interested... it gives them time to "interfere".

 

This will almost certainly be rejected.

 

As true as that may be at least he can demonstrate and has done it correctly before a ET

[firstclassx]

Re 1) and 2) above - there's no basis for a claim against the union or your employer.

 

Without actually having the law on your side, bandying about idle threats, for compensation with no basis behind the calculation, will just make you look weak.

 

The tickets that have been found are the key to your appeal, so strong emphasis needs to be placed on that point!

 

There is basis in law IMO.

 

Defamation of Character, because it is an unfounded attack on his professional character or standing, likely to prejudice him in the future.

 

As for the union, breach of contract. You pay union subs for a service, if that service is sub-standard and causes you a loss through negligence or otherwise, there is a breach of contract for failing to provide services as advertised.

 

The railway industry works a lot different to other workplaces. They don't "negotiate" or "back down" - ever.

[becky2585]

There is basis in law IMO.

 

Defamation of Character, because it is an unfounded attack on his professional character or standing, likely to prejudice him in the future.

 

As for the union, breach of contract. You pay union subs for a service, if that service is sub-standard and causes you a loss through negligence or otherwise, there is a breach of contract for failing to provide services as advertised.

 

The railway industry works a lot different to other workplaces. They don't "negotiate" or "back down" - ever.

 

Disciplinary proceedings are generally exempt from defamation claims, as it's not a public statement that's been made, it's an internal process, based on an investigation based on reasonable belief.

 

In terms of claiming against the union - its possible to try and run the professional negligence route, but having seen these cases in the past, they never succeed because it's more of a right (and I use the term right loosely!) to representation - not GOOD representation! Unless the union purposely sabotaged the case, it's unlikely to succeed. You can't bring a claim merely because the company decided the employee was guilty of gross misconduct.

[Pusillanimous]

I would add to that, do not rely too much on the fresh evidence coming to light, because they might well argue that the issue is that the tickets should never have gone missing in the first place, and it is not relevant they were found "down the back of a radiator". My attack would be on their internal controls, risk assessment and personal security that you should be entitled to, under H&S, against fraud or misfeasance by others. Mention this other gate keeper guy nosing around your office, to show anyone could have done it, etc. However, the fact they do audits tends to show they are aware of some of this.

[markl1987]

From what I understand there are supposed to me at least monthly internal audits done by the managers that cover the stations, because there has been such a change recently with the removal of supervisors, some being made managers, some being made redundant etc the internal audits were not being completed (the guy that did do them previously has disappeared on secondment for the last year) so due to this there was not the correct amount of checks being done. Audit team clerks will then come around and do their own audit checks as and when they fit them in and as required. This may explain why it took so long for the problem to come to light. There simply wasn't anyone checking for a long period of time when if someone else was interfering then it could have been identified after only a couple of weeks not 4 months

 

I've still not received my outcome letter along with the minutes (which was the excuse for the delay) so I might have to get the appeal letter in the post without knowing the exact details of the outcome letter

 

Thanks again for all your replies

[stu007]

Hi

 

Pusillanimous is correct on attacking them with internal controls, risk assessment and personal security.

 

Now if you were during this period lone working then they also are required to have a Lone Working Policy and Procedure that you should have been informed of.

 

I would also be using your training record only if it shows you recieved no training for that particular area in fact were you properly trained for that role.

[firstclassx]

Hi

 

Pusillanimous is correct on attacking them with internal controls, risk assessment and personal security.

 

Now if you were during this period lone working then they also are required to have a Lone Working Policy and Procedure that you should have been informed of.

 

I would also be using your training record only if it shows you recieved no training for that particular area in fact were you properly trained for that role.

 

They will simply respond that they comply with the National minimum standards set by ATOC. As for whether they do or not, well, I absolutely guarantee that the RMT and TSSA representatives will have signed the Health & Safety walkabout audits every 6 months certifying everything is compliant. In my company, the reps don't actually bother to do the walkabouts with management, but will sign them regardless and take a day off. It is hard for people outside the industry to see the blatant corruption between management/unions.

 

I guarantee they will have (and produce) every single risk assessment and policy you can think of. They don't comply with it, but you can never ever prove it because of the above.

 

They will further point to the company/railway handbook clause that states you must not undertake any task you are not competent or trained to do. They will then say because you did it without sufficient training, you breached XYZ policy.

 

The only way I've ever seen success against rail companies is blatant threats to go public with something. They hate the risks. My point is:

http://www.liverpoolecho.co.uk/liverpool-fc/liverpool-fc-news/2005/07/22/fans-back-on-track-100252-15768074/

 

In this instance, they had lost their appeal, but then went to the press. A director then agreed to "review" the case (and quietly retreat) once the public reaction was considered. They re-employed them, but gave them the worst role they could find.

They never wanted them to be re-instated, but the backlash of having them sacked was too great.

One was later set up and sacked about a year later, the other is hanging on, just.

Edited September 22, 2012 by firstclassx