HELP Fired for Gross Misconduct, can anyone help?(185 Posts)
NC because I am going to be recognisable with all my other comments and threads.
Well, I've been a bit stupid, naive, flippant etc.
Trying not to give too much identifiable information but I work in an area when one main employer is paying your salary by "leasing" you to different projects. Usually, you are always employed but occasionally, you might find yourself with no work but you still get paid and wait for the next project to arrive. By being employed like that you don't get paid as much as working alone but for those moment with no work, it's godsend to have a steady income.
I found myself in december in such a position. No work. This took over 7 months to find me something to do and in the meantime, I was connected to both the internet and having my emails so I didn't think it was necessary to go to the office every day and sit around for 9 hours doing nothing. I thought if something comes up, I will get a call/email and go in the office. I used to go in the office every other day for a few hours just to be seen.
And this is where the gross misconduct comes. According to my contract I should have been in the office for the whole 8 hours and they have gotten proof via the log-in/out system it exists at work that was not the case. Since this has been going on for months, it is classed as gross misconduct. Their argument was I didn't ask for work and was not proactive therefore I fell under their radar. My argument is they did it on purpose as it was said in a meeting that they "were surprised I had not left yet". My work has meet standards (and a few of them I exceed the standards) all the 10 years I worked for this company.
Now, my hearing with HR and my representative is for this week. I was caught of guard so I asked if I resign to have a clean record to find another job and not be unemployable. They can't guarantee that. But when I check online, poor timekeeping is not gross misconduct and it's their fault, nobody stopped me earlier.
What could I do. While this chance has been truly screwed, I want to preserve my name. I have a decent career and a family to feed and can't throw it all away if I become unemployable.
I am distraught right now as this is not how I envisage my life to turn.
So you've done nothing since December except collect your wages?
Not turning up to work for 7 months is more than 'poor timekeeping'
InfiniteSheldon, a few things here and there but yes, no project.
Have you got a union? How long have you been there?
Best you can hope for is a compromise agreement as in, you are allowed to resign.
You might find that you have to hide this completely from your CV until you 'clean' your employment history. This is done by short term contract for two years to get the references you need.
You don't need kicking when you are down but surely you must have realised no one is going to be paying you for 9 months to do nothing?
The issue here is your contract terms (the morality of whether you should have been more proactive is irrelevant - they are quoting contract terms to you, so that's what the argument hinges on).
In your shoes I would contact an employment lawyer as a matter of urgency , tell them the situation and ask them to review your contract and advise whether you are in breach of the terms. If you aren't then you can attend the meeting, tell them you have taken legal advice and that you are not in breach of contract and therefore if they wish to terminate your employment then they will need to make you redundant or give you a compromise agreement.
Poor timekeeping = you took 5 minutes extra lunch, not you did no work for over half the year
There's a massive difference between poor timekeeping and non attendance/unauthorised absences.
Unless I'm reading it wrong? Anyway you might wish to get this moved to Employment Issues?
I'm sorry but you've taken the piss and are distraught at being caught out? And you think is it their fault for not catching you out earlier? I'm at an utter loss to understand you or your behaviour am I missing something? How can you think this was acceptable?
You also need to gather together any evidence that you have, which shows that they were aware of you not having any work and not attending the office, without taking any action. Emails, meeting minutes and meetings where it was mentioned (note down dates, times, attendees and who said what).
Really, it didn't occur to you at all that this would be the ultimate outcome? Did you not ask at the beginning if it was really necessary to be in the office ? I can't really fathom how anyone could think they could be paid for that length of time doing very little and not checking in.
I second discussing a compromise agreement with HR. Then you can have an acceptable reference and move on.
It's a bit more than poor timekeeping !
Are you tuning that they were trying to get rid of you by not offering you anything?
Did you ask anyone for any work?
As I've said before the morality of what OP has done is irrelevant. She has a contract which her employer is relying upon to terminate her role. If the employer is within their rights to do so then fair enough. However if the employer is attempting to rely upon clauses which don't exist, or which are unenforceable - or OP can demonstrate that the employer was already well aware of the situation and did nothing - then they cannot dismiss her.
I don't understand why no one picked you up on your absence earlier, rather than letting it get to the stage where it's gross misconduct. Did no one ever mention your absences to you?
I'd talk to an employment lawyer and get my options clear, if I were you.
What does your contract say about what you have to do when you're not hired out?
I'm not an employment lawyer but isn't that the place to start?
Oh sorry, just seen that I missed a para in your OP.
If the contract says you should have been there then I'm not sure you have a leg to stand on
Have you had significant gaps between assignments in the past? How was it managed then, what guidance did you get?
Do you have regular performance reviews - was your gap in work discussed?
Is anyone else in the same situation?
What is your line management situation - who is responsible for ensuring you have work, and why did no one seemingly notice?
I work in consulting and we have a staffing tracker, it is transparent who has work and who does not even if there is no one person responsible so your company structure / organisation seems quite loose for them not to realise even if you didn't proactively do anything
Seems to me that you weren't being deceptive though, it was just a misunderstanding about what you were supposed to do in periods where there was no work. Surely if they were expecting you in for 8 hours every day they would have noticed you not being there? And if you didn't turn up maybe there would be a disciplinary where it was explained what the requirements were. It does not sound like they have followed proper disciplinary procedures at all. Yes, what is in your contract is important, but so is how they deal with someone not meeting the contract (if that is what happened).
What contact have you made with your employer whilst not working?
What have you done during other breaks between projects?
What do other employees do between projects?
What efforts have you made to either find a project, speak to your managers, speak to colleagues or otherwise engage with the day job or your employer in the last 7 months?
Ignore the crap advice from the non lawyers and make an appointment with an employment lawyer pronto.
As LDMJ above says, what's relevant is what's in your contract. In my experience most HR staff are not legally qualified and get it wrong a lot of the time so don't assume they're right.
I'm confused. What did they think you were doing? Did everyone assume that you were working at a different site? It seems like pretty poor management on their behalf but I wonder what you were doing to seek a project from them? Can you show regular emails were you are asking for projects? What do other staff do in your position? Is there a precedent for working from home in these situations and is there any mention of that within your contract? ( eg agile working).
Speak to acas, they are really helpful and will advise if you have grounds for grievance or going to a tribunal for constructive dismissal etc. Union rep if possible for meeting, or really clued up friend. Some lawyers ok but some don't know f all
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