Company Deciplinary Procedings - a short story on the stupidity of Prime!

[scaryjim]

... i wont try to sugar coat that at times my stupidity has no bounds

... Your best step is to write a decently constructed letter that itemises how you regret your moment of indiscretion, and that it is something that is truly out of character. ...

Definitely do not walk into a disciplinary hearing and make the first statement! Dave has the correct take on your behaviour here...

[Prime]

ive just read though the document a few times on company policy with regards to gross misconduct listing fighting, stealing, bullying, drug taking/selling, racism, destruction of property, distribution of pornography etc and my email is in the same parameters as these where as misuse of company email is an an act of misconduct.
i really am confused yet worried how it ties in with gross misconduct especially compared to the listed offences. and even though its been dubbed as a 'no no' from what i dont question as the smarter than me people: i cant help but think of past incidents in which email misuse was cleared with no suspension and a slapped wrist - i just get the CLEAR indication that im being thrown to the wolves with this, on the one hand i can flat out apologize for my actions and inform them of how much i enjoy my job, use my own time and money to undergo software training as the company do not offer training for it and so on - but on the other i just get more infuriated at the grounds that a very similar case which was actually sent directly to the VMD was brushed under the carpet.

[mikerr]

Almost all large employers are able to pull emails - don't forget that before going to your handful of friends your email goes through the company's email servers! I'm pretty sure, however, that if they're randomly snooping without any suspicion of wrong-doing they're on dodgy ground: similarly if an individual has come across this and decided to cause mischeif they are probably just as guilty of misconduct as you are.

I think taking the contrite approach is the right way to go at this point (because it was frankly a dim thing to do ), but if the worst comes you need to be asking all these questions somewhat strongly. What you did was dim, yes, but if other people have overstepped the bounds in trying to persecute you for your dimness (e.g. if the email did end up in the MDs inbox who put it there?) )

Not sure on the legality, but several firms I deal with have email systems where email from certain staff members outgoing email is copied to their boss. Done at server level. So it could land in a folder of the MD's inbox without another peoson being involved.

(slight derial)
Personally I view email as use of company property - why should everyone have a right to use company resources for their own private ends? Give staff email access and web access when they don't really require it and its often a licence to waste time.

It's not quite the same as personal phone calls, as people don't abuse that - largely due to everyone being able to hear if you were chatting on the phone for hours in the working day. Less easy to spot those sending joke emails and playing on the web all day...

[psychy]

Prime, pretty much the same thing happened to me.
http://forums.hexus.net/general-disc...dismissal.html

Totally understand how you are feeling at the moment.

First things first, as you've read your Employee Manual, make sure you familiarise yourself with their disciplinary procedure. Everything they do should be formal. Make sure all correspondance is carried out via paper and sent recorded delivery. Especially from your side.
Does your work have an IT Policy? If so, ensure misuse of IT is stated as a Gross Misconduct offence. IIRC, you can only be sacked for a gross misconduct offence.

Timing is crucial too. Anything they ask of you, be it attend a disciplinary meeting etc must be done with prior notice and via a formal letter sent to yourself.

Procedure is very important. Even if you deserved to be sacked, if proper procedure was not followed, you can sue for unfair dismissal (must be >1yr service), but seeing as TUPE exists, you're pretty much covered.

Any questions, do not hesitate to ask.

FYI, I did get sacked in the end but i sued them via employment tribunal and settled outside with a lump of cash. I ended up working for their client. You live and you learn but i was treated very harshly but all in all, I came out better for it.

[Rave]

I work for Xerox in house for another company (our Studio was absolved by a TUPE scheme in Feb 08)

You mean outsourced?

its no secret that this company payed us buttons for the job we do and Xerox have to honor that contract by the TUPE, im constantly annoyed at how little we are payed -

Eh? TUPE regulations mean that if your company is sold, or the job you were doing is transferred to another company, the new company cannot cut your wages. Xerox are not obliged to continue paying you buttons by TUPE regs, they are obliged not to pay you even less. I know this is irrelevant to your case, but I thought I'd clear that up anyway. I wish I'd known about TUPE when my company got bought by another in 2000; I went from a crap basic wage plus a percentage commission on all goods sold, to a crap basic wage and a store sales bonus which was nothing like what I was pulling in in commission previously.

i personally thought it was ridiculous considering that A. we don't work for this company anymore and B. i really don't care, neither do the people who will come to light now. i made a forward of this email to a few friends of mine with the following image:
(i've put the link as it contains a swear word and didn't want it to directly show up in the thread)
http://www.hotcupofrant.com/wp-conte...wsfromdomo.jpg

LOL. Saved that image for future use, cheers. In fact I might even email it round my company since there are now about 8 terminals in my building that all use the same, entirely non-personal email address, and as such the only way to identify a sender is if they sign the body text. I jest, but I'd quite fancy my chances of escaping detection, the first time at least.

today i was dragged into the office and was showed a printout of this email and my head just sank, whats worse is: someone has sent it to the MD.

They can say that, but ask yourself who sent it to the MD. Either one of the friends/colleagues you sent it to is a backstabber (and this is a possibility, since some people apparently believe that the way to progress at work is to do down or stitch up their colleagues); or, more likely, someone who has monitoring powers over the email system saw it, and forwarded it on. But even more likely is that the MD actually hasn't seen it, and they're just saying that to put the wind up you, because some managers apparently believe that a frightened and cowed employee is a productive one.

You don't say who controls the email system you sent it on. If, despite working for an outsourcing company, you're still on the original company's email system then it becomes more likely that the MD would have seen it. If you sent it through a Xerox system and it made it to the MD of the company they're contracted to, then whoever was responsible for that ought to be in a whole heap of trouble, far more than you!

straight off the bat i was sent off site and told not to come in work tomorrow and to wait for a phone call to come in and have a disciplinary at Xerox Head office. as i was leaving the Xerox manager pulled the department into a meeting and told them what had happened and said i had sent it to the wrong email of somebody who showed the MD

Could you have mistakenly added another recipient to the email? Or do you know for a fact that you didn't?

any other information or advice on this would be greatly appreciated, the sooner the better as i don't know when i am going to get a call in the morning. if i can provide anymore info to anyone that needs it for an answer then please ask!
also is their anything i should or shouldn't say in the meeting tomorrow, i was basically going to go in and be straight with them - tell them how stupid it was, apologize and ask to apologize the the MD

Well, let's see. You have a) mocked the MD of the company that you are contracted to, through the company email system; b) done so using an image which contains a swear word. However, you sent the email to (by the sounds of it) a few of your close colleagues, and certainly did not intend the MD to see it; as such, you had no intention of offending anybody, and in fact whoever was responsible for forwarding the email to the MD is the one responsible for offending her.

I went to a few "team building days" when I worked for my previous employer- you know the sort, hire a big conference room, a few motivational speeches from the bigwigs, a few group exercises to explore our "values as an organisation" etc. etc. If I had walked out after a speech for a coffee break, and commented to my friends "well that was a load of guff" without noticing that my boss was stood right behind me, would that be misconduct? I suppose if I said "well that was a load of ****ing guff", then maybe more so, but I'd still have intended it to be a private conversation with my friends. As far as I know, criticising the management of your company is not generally a disciplinary offence.

TBH, I'd say that all they really have you on is breaching the company's IT/email policies. You should clarify whose email system you sent this message on, because it has implications.

yeah thats the general picture ive got on whats going to happen.
the manager just came round and dropped off a letter and policy for dicipliary, ive got a further 5 day suspension and a hearing at the end of it.

Right, well tell us what's in the letter. What exactly are they disciplining you for? Have they attached a copy of the policy you are alleged to have breached? If not, ask for a copy immediately.

I'll ask my mate who works in HR to have a look in here. Shame really, as I would have enjoyed using the Domo-Kun image in reply to one of his emails, but never mind.

[Rave]

Well, I asked my mate to look over this thread, and it seems that he thinks my advice, based on common sense as it is, is worthless. Here's his exact reply, unedited except for one swear word:

Bottom line; he's ****ed and has to take what they give him.

There is absolutely no right to privacy under human rights legislation under
misuse of internal computer systems or sending offensive messages, whether
they are received by the intended recipient or not.

He has not a hope of winning an employment tribunal if they dismiss him, and
would have to fund it himself anyway (in the region of 10 to 100k).

The original advice of basically grovelling and being apologetic is the only
option.

Speaking personally, and Ive had several computer misuse cases, I wouldn't
dismiss for a picture like that, a strong flea in the ear would suffice,
however if the company is looking to lay off staff and not have to pay
redundancy this is a very common way of doing it (another is introducing
mandatory staff drug tests, though that's a different issue).

However the rule of thumb is misconduct is a ticking off, gross misconduct
is usually dismissal if substantiated, as said elsewhere though as long as
the company follows their own policies, they are bomb proof, and note giving
a letter a day late etc is not sufficient grounds for a tribunal they would
have to have really gone against their own procedures for that to stand.

The fact a suspension has already been issued doesn't bode well either.

My mate manages a large-ish team in the HR dept. of a large public sector organisation FWIW. So, erm, grovelling it is I think.

Edit: he then sent me this follow up:

Another good get out clause is claiming "personal problems" wife left, kids got cancer etc that caused you to lose your judgement
momentarily.
Admitting to having a heavy drug habit or being an alcoholic on the other
hand does not help.

[Barrichello]

This scenario sounds like what happened to a mate of mine who used to work at a well known Investment Bank. Its of course common for companies to have recognised email policies to enforce what it can and cant be used for.

When my friend got pulled over the coals for it he highlighted that other people have passed on the same jokes etc, but just happened the person who had got the email from him raised it with personal directly even though it transpired the "offended recipient" has been involved in similar behaviour before "i.e sending joke emails/pics". If you are not in favour for what ever reason with your superiors then it can be built up into disciplinary and yet if you are in the "clique" it can get overlooked and swept under the carpet. He only got a verbal warning but was enough to make his mind up to move company anyway.

[Prime]

all taken in, just a few answers even though they are highlighted as irrelevant.
it was either seen or forwarded from a friend of mines computer as i know of which friend it has to be considering the person that showed the MD is the manager of this persons department but im not supposed to know this (if that makes sense).
im in quite well with my manager on a personal level and have been for a while and after all this happened and i left, i sent him a text to his personal phone basically apologizing to him as my manager and to the department - based on a personal not, didn't get a reply, fair enough - and then another friend text me today about the manager telling me he's solely concerned with number one, if its outside his personal zone he doesn't care - kinda disheartening. I dont' really have much more to say - i've just got to shuffle round at home now and wait for the inevitability

[badass]

Well, I asked my mate to look over this thread, and it seems that he thinks my advice, based on common sense as it is, is worthless. Here's his exact reply, unedited except for one swear word:

Bottom line; he's ****ed and has to take what they give him.

There is absolutely no right to privacy under human rights legislation under
misuse of internal computer systems or sending offensive messages, whether
they are received by the intended recipient or not.

He has not a hope of winning an employment tribunal if they dismiss him, and
would have to fund it himself anyway (in the region of 10 to 100k).

The original advice of basically grovelling and being apologetic is the only
option.

Speaking personally, and Ive had several computer misuse cases, I wouldn't
dismiss for a picture like that, a strong flea in the ear would suffice,
however if the company is looking to lay off staff and not have to pay
redundancy this is a very common way of doing it (another is introducing
mandatory staff drug tests, though that's a different issue).

However the rule of thumb is misconduct is a ticking off, gross misconduct
is usually dismissal if substantiated, as said elsewhere though as long as
the company follows their own policies, they are bomb proof, and note giving
a letter a day late etc is not sufficient grounds for a tribunal they would
have to have really gone against their own procedures for that to stand.

The fact a suspension has already been issued doesn't bode well either.

My mate manages a large-ish team in the HR dept. of a large public sector organisation FWIW. So, erm, grovelling it is I think.

Edit: he then sent me this follow up:

The part in bold is complete ****. The rest may well be true but based on that I'd not take that advice as gospel.
Taking an employer to a tribuneral does not cost the claimant money. Even if they lose (depending on circumstances)
That said, the part in italics is a pretty strong indicator that that advice was given by someone that doesn't know what the **** they are doing anyway. The public sector is a magnet for incompetent people.

[Rave]

He has not a hope of winning an employment tribunal if they dismiss him, and
would have to fund it himself anyway (in the region of 10 to 100k).

The part in bold is complete ****. The rest may well be true but based on that I'd not take that advice as gospel.
Taking an employer to a tribuneral does not cost the claimant money. Even if they lose (depending on circumstances)

First google result: http://www.employmenttribunals.gov.u...theHearing.htm

Will I be expected to pay to go to Tribunal?

In most Employment Tribunal cases, each side will pay their own costs. However, in certain circumstances, the tribunal may order one side to pay costs to the other. Those circumstances can include if one side has behaved unreasonably in the way they have carried out the case or if a tribunal thinks that a claim was so weak that it should not have been brought.

So yes, if it goes that far he can take it to a tribunal for free, if he represents himself. To have any realistic chance of success, he'd need legal advice, which costs significant money. In the absence of any aggravating factors, he's unlikely to get Legal Aid IMO.

And if his dismissal is on the grounds that he's clearly breached the terms of his contract, which he presumably signed up to, and he fails to prove otherwise, then potentially a tribunal could decide that it's a vexatious claim and award costs against him.

That said, the part in italics is a pretty strong indicator that that advice was given by someone that doesn't know what the **** they are doing anyway. The public sector is a magnet for incompetent people.

You can cuss my mate out all you like- I do, a lot, over Friday night beers- but he's a member of the CIPD, and CMI. He runs the appraisal process for 53000 members of his organisation, and with it a team of 40 people. And AFAIK he's never lost a tribunal.

[badass]

So yes, if it goes that far he can take it to a tribunal for free, if he represents himself. To have any realistic chance of success, he'd need legal advice, which costs significant money. In the absence of any aggravating factors, he's unlikely to get Legal Aid IMO.

So we're agreed that the statement by your friend that seems pretty absolute may not be completely right?

You can cuss my mate out all you like- I do, a lot, over Friday night beers- but he's a member of the CIPD, and CMI. He runs the appraisal process for 53000 members of his organisation, and with it a team of 40 people. And AFAIK he's never lost a tribunal.

Companies almost never lose at a tribuneral. 2 words. Compromise agreement (they pay the ex employee off if they stand a realistic chance of winning)

However I will agree that common sense has no place in employment law. It allows employees to be a nightmare for small businesses and allows employers to be completely unfair in other areas.

[TheAnimus]

Most people never end up going to tribunal. Things can be settled before, often without the effected managers admitting that they settled. For instance I had a small difference of opinion shall we say, at the hands of a previous employer, I felt obliged to resign, constructive dismissal was a phrase casually tossed about. The problem was my new job paid a little more, so my damages at tribunal would have been squat. However I was still able to scare them just enough, because of internal politics and the reputation I'd built up (I had easily the best performing team, by a wide margin, even the CEO knew this). They in no way settled with me, and I in no way would ever try to use a threat of legal action for money.

However I did get paid for extra days that had been worked over the last year which had then accrued as holiday which I couldn't actually take. It worked out at half the money I would have appreciated as a redundancy.

They didn't pay me off, I didn't have to ask them too. Everyone is happy.

But in this case grovelling is clearly the best option now.... Please remember that!

[psychy]

Prime, my advice is to try apologise if you can. If not and from the response of management, they seem like they are going to manage you out, make preparations for taking them to employment tribunal.

Also, go to docs to say you are stressed. U can use this in the tribunal claim for damages, especially if they failed on procedures and you have a high chance of winning.

Yes, you can represent yourself and do not necessarily need a employment lawyer. I didnt but i got advice from friends 'in the know'.

Clearly, your company are taking the heavy hand approach to you so pre-empt them and put yourself in a strong position come tribunal time.

[scaryjim]

Surely the crux of any tribunal would be whether your actions can be regarded as Gross Misconduct, rather than "normal" Misconduct. That will all be down to the wording of the various policies. If they can fit your actions into Gross Misconduct without stretching any of the definitions in those policies, then I don't think you'd have much chance: if they have to manipulate your actions to bump them up from just Misconduct then you could have a case.

tbh, it sounds to me distinctly like they're trying to make an example of someone, and you were the unfortunate sap who got caught first. If you'd posted your comments publically along with the name of the MD etc. then I would have no doubt that would count as gross misconduct, but you sent a private communication to a small group of "friends" (unless you hit reply-all by mistake?). Snarking about management to your mates is pretty much part of any job - using company systems to do it is probably misconduct, but common sense says that it shouldn't be a sacking offence. I can imagine there are a few newspapers out there who'd love that story...

btw, If you want to go for a pint and rant about it sometime, just let me know

[dave87]

Prime, my advice is to try apologise if you can.

Most definitely do not do this. Reason being, they've already told you not to contact them pending the disciplinary. If you do, it just further evidences your disregard for their rules (their opinion of the situation, I'm sure).

By all means stick in a letter and give it to those at the disciplinary, but do not phone up to try to apologise.

[psychy]

What I meant was that to show remorse for what you did. But as Dave87 said, dont go forcing the issue.