HELP Fired for Gross Misconduct, can anyone help?

[Henrysgone]

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.

What is the usual protocol that is followed when in between project work? As in, is it normal for people to not show at all in between projects, and the extenuating factor in your situation is the amount of time you had between projects?

If people usually don't come in and this is known practice, then it could be argued that you weren't doing something deceptive or massively below board, and that they do have some responsibility to take in that they didn't assign you to a project.

If it states in your employment contract explicitly that you should be in the office for the whole day regardless of whether you have a project or not (and doesn't just outline core hours or something) then I'm afraid that's not a defence though. However, it might be that you can argue this fact to help you come to an agreement for a positive reference.

Also, as PP's have said, it doesn't necessarily have to be your manager's reference, people who work with you can provide references.

I think you knew full well what you were doing OP otherwise why would you have felt the need to " Pop into the office every other day to show my face "

You have been crafty and now caught out !

Just a bit of anonymous legal advice for you... there are two things to think about here - please note that you cannot rely on this and should get proper advice but i just wanted to give you my 2 penneth professional opinion for what it's worth...

1. your employer hasn't said anything for 7 months, so i think you could argue that they were (at least to some extent) complicit in this and that your breach of your contract was effectively waived (at least for some of that period) given how long it's taken them to mention it; and

2. I think you may have a claim for constructive dismissal. Waiting so long to mention this and based on the other comments you've mentioned, this sounds like they've been waiting for an excuse...

i suggest you see a lawyer quickly.

Blimey, you've been getting paid for doing nothing since last December? I want your job!

Seriously though, ACAS is your friend here. Good luck.

I don't think they can just do this, are you sure there has been no contract from them at all in terms of you coming in?

I do think though you should have known you were contracted to go in, and formally requested not to instead of just deciding you wouldn't go any more.

You MUST speak to an employment lawyer.

They may be able to argue constructive dismissal or something else.

If it is Gross Misconduct you won't even be entitled to payment in lieu of notice.

First session is usually free, and you may also be covered for the cost on your household insurance - worth checking.

My argument is they did it on purpose as it was said in a meeting that they "were surprised I had not left yet".

Were you at this meeting? Would anybody else be able to corroborate this?

It does sound suspiciously as though they were deliberately leaving you "on the bench" in the hope that you would leave and they wouldn't have to pay redundancy. When that didn't work they have taken this approach.

This took over 7 months to find me something to do

Did they come to you at home with this job or did you go into work and ask for it. If they contacted you then they knew all along you were available.
Anyway it is pointless speculating without more information.

This isn't poor time keeping its unauthorised absence. It seems the employer has to make all reasonable attempts to contact the employee and get them to come to work. Did they do this?

I also agree the meeting comment is very dodgy and it does sound like some engineering has gone on behind this whole thing. I mean, what shit management has to be going on to allow someone to go without any assigned work for over half a year? I can't believe that they have no part to play in this.

I wouldn't resign, I would explore all options with them first I suspect they are counting on you panicking and handing in your resignation.

I would also check that they can go straight to gross misconduct with this, if you have had no prior written or verbal warnings about your attendance, that also sounds a bit dodgy to me.

Am sorry but you've messed up! Your contract says you should have been in the office for '8 hours a day' and you only went in every other day to show face for 7 months. Yes the company should have realised sooner but you are still in the wrong. My old company did some ex employees for theft of wages for leaving and starting work 5 mins late which is ofcourse theft. Resign and start looking for new work. Be honest with any potential new employees / free lance contracts, I think it was a genuine mistake on your part that you thought you didn't need to be there every day so I would say that and reassure them you want be making the same mistake again x

it's their fault, nobody stopped me earlier

Where do you feel your responsibility to both yourself and your employer lay in this respect? In what way were you proactive as a willing employee, other than turning up occasionally to show your face?

Winging it for a couple of weeks, yeah, nice work if you can get it. But SEVEN MONTHS? Really?

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. So this is basically working from home. You were logged into work and waiting for an assignment. Surely there is a record of that somewhere?

how stressful for you!

Yes, this is when you get an employment lawyer involved asap.

Some people are just morally judging you on this thread, and enjoy being outraged, which does not help.

What do your colleagues do when they are not on a project (what is common practice in the office?), have you been in touch with your manager (or whoever it is that wild normally sign the jobs to you?)

My brother works for an oil company, and has weeks/months between projects. He gets to stay at home, but is in touch with his manager twice a week. Just mentioning this as an example, in his office it is common not to take up desk space unless you are on a project.

Gather evidence of common practice and evidence you have been in touch with your manager regularly, and get on the phone to an employment lawyer asap.

Something weird is going on, in that they never chased you...did you imply that you think you may have been "set up"?

I know that there are jobs where it's not uncommon to be doing nothing much for months on end, then your boss calls you and says you need to fly halfway round the world tomorrow morning and work 12-hour days for two weeks on a project. So without knowing more about OP's situation, it might not have seemed especially unusual. (A sensible employee will use those months of downtime for work-related study.)

What does seem unusual and dodgy is for the employer to do and say nothing for those months, then attempt to dismiss OP for 'gross misconduct'. That goes wholly against the normal codes of practice for an employer.

HR Manager here.
I've lots of questions!

• who do you report in to? How often do you speak to them? What have they said to you in those 7 months?
• What does the exact wording in your contract state?
• what has happened when you have had breaks between projects before? How long were the other breaks?
• how are projects assigned to you? Who allocates them? Or do you need to apply for them?

Gross misconduct is a fundamental breach of contract. Where the employee has done something so terrible that the employment relationship is damaged beyond repair. Your employer has allowed you to do this for 7 months. If I were you I'd be arguing that people knew you were doing this and were allowing you to do so.

You need a good employment lawyer, OP.

I work in the legal side of HR and I'm wary of giving actual advice because your case (as any case) will be complicated and there will be lots of factors that are contributory here. My own opinion based on what you've said is I think it's highly unlikely you'll get constructive dismissal unless you have a fairly comprehensive written record of all the times you've contacted them to ask for a project to be allocated (e.g. email trails) which reading your OP it doesn't sound as if you have - but if you can show that they're at least partly to blame for not issuing written warnings then you might get a compromise agreement.

The best advice I can give is get working on finding an employment lawyer today, and keep your contact with work to a minimum until you've had legal advice.

Am I the only one wondering what the hell kind of job this is, and if any such position exists anywhere near me?!

Because the more I think about this the more unbelievable it seems that someone could think it was ok to draw wages for 7 months without doing anything more than a few little bits of work here and there.

Tip 1 - take a tape recorder into the meeting and say that to ensure there are no misunderstanding you would like to tape the meeting. This always throws employers.

Tip 2 -your time with this company is clearly up so before the meeting starts, say that you would like to say something before the meeting gets under way. In this "speech" which you should have prepared, state that you feel there has been a misunderstanding on your part and that both sides could perhaps have done more to resolve the situation, state that your 10 year work record prior to this is exemplary and that you are prepared to resign as long as your record is not tainted by a dismissal and you will be given a fair reference.

Should they argue the toss then don't say anything. Let them shoot themselves in the foot on tape and then say if your request is not agreed, you will have no choice but to seek legal representation and take matters further as you don't believe they have followed the correct process to get to this stage.

I would say they will opt for what you want

They should have said something to you months ago.

I'm an employment lawyer.

If no one mentioned anything to you for 7 months and then just dismissed you out of the blue then that is going to give you a reasonable claim for unfair dismissal. It sounds from the wording of the contract they would have been well within their rights to dismiss you much sooner. However, the fact they did not take steps sooner (whether formally or informally) makes this much more open to challenge I believe. It makes it hard for them to argue the situation has suddenly become so serious they have to terminate you immediately. I would appeal the dismissal making that point.

Also obviously if others have behaved as you have previously and not been dismissed that would also point towards your dismissal being unfair.

I'm sorry, I'm still not able to answer all question but I will try.
Form one side, it was me. I did go in the office to be seen and ask around for work. It was verbal tho and I have done some bits and bobs over time, including, over 25 hours of training. The maximum I could have a year. It's not a 9-5 job. I have done 24 hour days to deliver.
My yearly review was in December last year, a couple of week, prior to finishing my project. My manager was aware that I could and would do anything in the meantime. He said I'd fallen under his radar, even tho he gave me some small stuff to do in July which I did. He said, I did not chase the results or my work. Which is untrue but again, it was all verbal. My fault.

When I was told that "they thought I had left by now" was with my manager. My industry is dead so people are made redundant left, right and centre.

That does not negate what I have done.
But question is do I have an argument to clear my name? I need to work. Do companies give references of character? As far as project bosses are concerned I have a couple of people I can use that were always impressed with my work.

Am I the only one wondering what the hell kind of job this is, and if any such position exists anywhere near me?!

Really not that uncommon. I used to work somewhere that this happened and it was perfectly acceptable to "work from home" since there wasn't enough desk space in the office anyway.

I didn't like that set up at all so found somewhere else. However, I have a former colleague who is in a similar position. She has been in her job for nearly 2 years now and, while she is expected to go in, she has been given very little to do in all that time.

I don't think this is gross misconduct at that usually relates to a one-off incident or if a pattern of behaviour, one that has just been discovered. Neither apply in your case.

Union member? If so, get in touch with your rep as soon as.

Not a union member? Hmmm...

Really not that uncommon

I need one of these jobs.