# sacked for missing one shift



## dempster (26 Mar 2008)

Hi, I wonder if any one can help. 

My 20 year old son got a phone call from work yesterday to say that he should have been at work an hour ago.

He either misread the rota for the first time in 18 months or they changed it and he wasn't aware. His rota is different every week.

He said he would get there as soon as possible but they told him it was gross misconduct and sacked him. 

He has never had a day off sick or made this mistake before.

Surely this cant be right.


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## grahamo (26 Mar 2008)

Terrible behaviour on the company's part. I'm guessing there's no union representation in the company. Check this site for info and the next step
[broken link removed]


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## jhegarty (26 Mar 2008)

Missing one shift could never be gross miss-conduct..

talk to a solicitor today...


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## Sunny (26 Mar 2008)

Was your son a permanent employee?
Did he sign a contact and if so what do the terms and conditions say about gross misconduct and what information does it give on the disiplinary process?


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## Orga (26 Mar 2008)

You are perfectly correct, it's not right in so many respects, so here's what he should do if you want to proceed formally:

1. Write to the employer making mention of the verbal notice of dismissal in his letter and contesting that proper procedure wasn't followed
2. Request that the employer provide a written reason for his dismissal and a copy of the company's code of conduct/disciplinary procedures
3. Activate whatever appeals procedures are in place in the company
4. Ensure that if he attends any meetings that he is accompanied and that a record of the meetings is kept
5. If that doesn't work then post again and we can go through next stages

However, before you go down the formal route I would suggest, depending on the "temperature", that your son contacts the employer by phone and asks if they can sort this out. Do not, under any circumstances, attempt to engage on the phone in sorting it out - purpose of the call is to inquire if there is will on the employer's part to meet to sort out matters and to arrange a neutral place and time for that. They should meet in a public place, coffee shop etc and your son's point should be that he values his job, he wants to keep it, that his record was impeccable, if there was a misunderstanding then he is sorry for that but that it doesn't warrant a dismissal and that he would like to go back to work. If the meeting is not going well then he should say thank you for meeting me and walk away. Then activate the formal mechanisms.


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## dempster (26 Mar 2008)

yes he is a permanent employee. We have read his contract and this is not deemed as gross misconduct. They state they have certain procedures that they will follow if problems arise but he was sacked on the spot. He is a quiet fellow and finds it hard to argue his case.


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## Caveat (26 Mar 2008)

Not to cast aspersions, but be sure though that you have the full story from your son - he may not have misread a rota or been off sick before but he may have been disciplined on other occasions. 

Regardless, 'gross misconduct', if that was the exact phrase used, almost certainly does not apply to missing work once.


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## becky (26 Mar 2008)

Can he ring someone else in the company who is higher again - you'd be surprised how many managers think they can sack people whenever they feel like it but have no authority to do it.

If he has no luck here I would get him to write to the comoany outlining what happened and state that he will be atking a case for unfair dismissal.


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## Martinslan (26 Mar 2008)

Suggest son present himslef for work at the start of his next shift and his supervisor will have to deal with the matter. Son needs to show he still wants to do his work and get over whatever over-reaction someone else has.... Even though he is quite there must be somebody he can talk to after 18 months even if it is to support him at meetings with his supervisor , union or no union.  He neesds to let his fellow employees know what is going on as well. If it can happen to him it can happen to them....


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## Sunny (26 Mar 2008)

dempster said:


> yes he is a permanent employee. We have read his contract and this is not deemed as gross misconduct. They state they have certain procedures that they will follow if problems arise but he was sacked on the spot. He is a quiet fellow and finds it hard to argue his case.


 

If they didn't follow the procedures contained in the contract then you have a strong case against them for unfair dismissal. As mentioned above your son could try and sort it out with them or he could make an application to the Employment Appeals Tribunal. As mentioned above, make sure you are getting the full story from your son though!


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## shipibo (26 Mar 2008)

Talk to http://www.flac.ie


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## Purple (26 Mar 2008)

If the facts are as presented the employer is completely in the wrong. It doesn't matter if there was a contract or not. Even if there is a contract and even if missing one shift (or being late for one as was the case here) is deemed to be gross misconduct this will not stand up at an Employment Appeals Tribunal. 
I cannot put conditions or definitions in the contracts that I give my employees that are not reasonable and being late for work cannot be reasonable described as gross misconduct. 
Sorry for labouring the point but employers that behave like this annoy the hell out of me.


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## dodo (26 Mar 2008)

Don't get him to argue his point with the company go straight to a solicitor to argue his point for him, and I believe he would win any sort of lawsuit. I am in management and no way if all you say is true can this be accepted. You must insist on a full copy of their policy regarding  such matters at once.It looks like they could have been waiting for an excuse and if this is the case then go the legal route.He should get a settlement and then find a new job .Make sure he is telling you the whole truth. best of luck,  


dempster said:


> yes he is a permanent employee. We have read his contract and this is not deemed as gross misconduct. They state they have certain procedures that they will follow if problems arise but he was sacked on the spot. He is a quiet fellow and finds it hard to argue his case.


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## dempster (26 Mar 2008)

took your advice and presented himself at work but they told him to go home as a no show was gross misconduct. He went to the CAB that have adviced him that they are wrong. I have no reason not to beleive him he is a good quiet lad and has regular work assesments that have never been negative. They have stated that they will phone him to arrange a meeting. Would i be able to go or would i be best not to. I dont know if i could just sit and listen without getting involved.


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## dodo (26 Mar 2008)

Please do not go in with him yourself as you are emotionally evolved and probably have no experience in this type of matter get someone  in the legal profession  or someone you know who is in  a management position themselves and have first hand experience.  If they do not offer him the chance to bring someone in with him then they are leaving themselves wide open for a big fall. If they don't then they are very unprofessional ie good chance they are a family run business or a very small company. He should insist on bringing someone with him and he does not have to say who this person is. I have dealt with HR issues for a long time and they seem to be very unprofessional. Feel free to ask any questions or even if you wanted to ring me just PM me. Remember they are bullies so be careful


dempster said:


> took your advice and presented himself at work but they told him to go home as a no show was gross misconduct. He went to the CAB that have adviced him that they are wrong. I have no reason not to beleive him he is a good quiet lad and has regular work assesments that have never been negative. They have stated that they will phone him to arrange a meeting. Would i be able to go or would i be best not to. I dont know if i could just sit and listen without getting involved.


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## dempster (26 Mar 2008)

Your right i wont go with him. it is not a family run buisness it is a very large 5 star restuarant, bar, hotel etc.., very exspensive place. He has been waiting for a call back all evening but when he phones he is told they are in a meeting. I will  make sure that he takes this futherand let you know how i get on. Thanks for all your replies


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## Lauren (26 Mar 2008)

Good luck with it and keep us posted. Sounds like disgraceful behaviour on their part.....


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## TreeTiger (26 Mar 2008)

Personally I would recommend you get some sort of "official" companion to go to any meeting with him, a solicitor if necessary.  Your support is one thing, and it will be very helpful to him, but it is entirely something else for an official person to tell him that he is in the right and should not accept the behaviour of his employer.  

If he's a quiet lad as you say then an incident like this could have a major effect on his self esteem, so he needs to have it sorted.  Best of luck, I hate hearing about people being treated badly like that.


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## Staples (26 Mar 2008)

Sounds like they're giving him the brush off already by saying they're not available to take his call.  i wouldn't let this slide too long.  Get in touch with a solicitor and have a registered letter sent ASAP.

It sounds like they may have been looking for an excuse to let him go and that as soon as he put a foot wrong they came down hard on him.  Maybe I'm wrong but either way, they've acted incorrectly and illegally.  

Turn it over to the professionals.  Act swiftly and contact a solicitor.


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## foxylady (26 Mar 2008)

dempster said:


> Your right i wont go with him. it is not a family run buisness it is a very large 5 star restuarant, bar, hotel etc.., very exspensive place. He has been waiting for a call back all evening but when he phones he is told they are in a meeting. I will make sure that he takes this futherand let you know how i get on. Thanks for all your replies


 

Does he have a years service with the company, if so tell him to get on to [broken link removed] and download a form called a t1a and send it back immediately


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## Sunny (27 Mar 2008)

Purple said:


> I cannot put conditions or definitions in the contracts that I give my employees that are not reasonable and being late for work cannot be reasonable described as gross misconduct.
> .


 
He wasn't late for work. He didn't turn up at all for his shift for whatever reason and they had to ring him. Failure to turn up for work when due and without notice can be put into contracts as gross misconduct. I have seen it plenty of times but I admit it is rarely enforced like in this case. The contract is important as the charge of gross minconduct or any other disiplinary charge will only stand up at tribunal if the disiplinary process outlined in the contract has been followed. If there isn't a disiplinary process or it hasn't been followed, the tribunal is likely to find on behalf of the employee. There is plenty of precedent in this area.

Taking this case on its merits, it sounds like you have two strong cases. First, you can argue that it wasn't gross misconduct which is certainly doesn't sound like considering your son has a strong employment record and secondly you can agrue your case about due process which in my opinion you are certain to win.  

For a five star hotel or any employer to behave like this is disgraceful. Make sure your son stands up for himself and his rights.


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## greenfield (27 Mar 2008)

Agree with all the other posters - as sunny says, it would be hard for them to justify this as gross misconduct, especially as his roster varies so much and they did not appear to have followed due process.   Make sure that your son is writing detailed minutes on everything, date and sign them.

If there is no possibility of sorting this out to your satisfaction with the company, would suggest referring your unfair dismissals case to the rights commissioner service though, not employment appeals tribunal.  It is less formal and a little easier for you to go in on your own.  I would also examine if there are any other breaches - for example if he did not get a written statement of terms and conditions of employment (iin a contract or handbook) you can also refer a case under Terms of Employment Information Act, did he get his holidays, public holidays, rest breaks?   If not this is a case under the Organisation of Working Time Act.   Did he get paid his minimum notice?  FYI, The employer can object to the unfair dismissals part of your case being heard by the rights commissioner and move it to the EAT. 

Don;t forget to demand a favourable reference as part of any deal with a committment that it will be supported verbally if anyone rings to verify the reference.


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## shipibo (27 Mar 2008)

On issue of face-to-face meeting , when they contact you with meeting time and date, state you will have a representative / witness attending.

A family friend will do, dress appropriately, and note down all statements made by company HR.

Have a story going in, and do not deviate, as they may try to get you to make statements you could later regret.

You are only there to listen to their perspective, the less you say the better.

Have you received a letter of dismissal ??, this should be requested


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## foxylady (28 Mar 2008)

greenfield said:


> Agree with all the other posters - as sunny says, it would be hard for them to justify this as gross misconduct, especially as his roster varies so much and they did not appear to have followed due process. Make sure that your son is writing detailed minutes on everything, date and sign them.
> 
> If there is no possibility of sorting this out to your satisfaction with the company, would suggest referring your unfair dismissals case to the rights commissioner service though, not employment appeals tribunal. It is less formal and a little easier for you to go in on your own. I would also examine if there are any other breaches - for example if he did not get a written statement of terms and conditions of employment (iin a contract or handbook) you can also refer a case under Terms of Employment Information Act, did he get his holidays, public holidays, rest breaks? If not this is a case under the Organisation of Working Time Act. Did he get paid his minimum notice? FYI, The employer can object to the unfair dismissals part of your case being heard by the rights commissioner and move it to the EAT.
> 
> Don;t forget to demand a favourable reference as part of any deal with a committment that it will be supported verbally if anyone rings to verify the reference.


 

Rights commissioner might be less formal but they are only recommendations whereas employment appeals is legally binding.


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## Purple (28 Mar 2008)

Sunny said:


> He wasn't late for work. He didn't turn up at all for his shift for whatever reason and they had to ring him. Failure to turn up for work when due and without notice can be put into contracts as gross misconduct. I have seen it plenty of times but I admit it is rarely enforced like in this case.


My point is that you can put anything you like in a contract of employment but if it is not reasonable it is not worth the paper it is written on. Missing a shift when you are in a job where your roster changes frequently and is subject to revision at short notice cannot reasonably be described at gross misconduct. Gross misconduct implies grossly inappropriate conduct in the work place. Sacking for timekeeping is only watertight if warnings, both verbal and written, have been given and a pattern can be shown.

It sounds like the employer wanted to get rid of some staff and used this contemptible excuse to do so without paying a few weeks redundancy.


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## csirl (28 Mar 2008)

> It sounds like the employer wanted to get rid of some staff and used this contemptible excuse to do so without paying a few weeks redundancy.


 
This could well be the reason - it wouldnt be the first time this has happened.

On a cautionary note, before you start jumping in and complaining, as some previous poster said, you need to be sure you know the full story. Has your son received warnings for other incidents that you may be unaware of?


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## greenfield (28 Mar 2008)

Yes,  a rights commissioner makes a recommendation when they hear a case about unfair dismissal.   If the employer objects to the Rights Commissioner hearing, it goes straight to the EAT, where a legally binding determination is given.    If the rights commissioner recommends in your favour and the employer does not implement it, you go to the EAT.  So your worst case is either the employer forces it to the EAT or you have to refer it to the EAT after a rights comissioner hearing for a formal determination.   I recommend the rights commissioner route to claimants in a case like this because it is less formal and less stressful.   If the facts are as we have been told, the rights commissioner will often have a private word with the employer and explain the facts of life and give them an opportunity to settle it.   In my experience, with a case where the employer is bound to lose whatever the forum, and that is explained to them by the Rights comissioner, most will take that opportunity to settle.  That gives the claimant a chance to make sure that they get a good reference as well as compensation.


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## Flax (28 Mar 2008)

I'm not sure if this means anything, but I used to work as a barman in a five star hotel, and the managers who worked there were also the hot headed type who ignored procedure. From talking to my colleagues there, this was normal behaviour in hotels.

Again, from my experience, it sounds like one of the managers disliked him (the quiet types are normally disliked in hotels), so he used this as an excuse to fire your son.

Good luck.


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## dempster (2 Apr 2008)

hi, just a quick update. when they finally got in touch after i had threatened them with a solicitor. they changed it to he had been suspended  not sacked. He has had a meeting and is back at work so that he can leave under normal circumstances with a referance. The reason we are taking it no futher is because some of you were right in that even though they did not act correctly and had no reason to sack him for gross misconduct it was not all one sided. He was not as innocent as he made out and i am furious with him. Iam not one of those ma's that think thier kids can do no wrong so i am mortified. i phoned the person who i gave out to and appologised and he was quite gracious.


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## Lauren (2 Apr 2008)

Thanks for the update and fair play for getting to the bottom of it...Sounds like they may still have been somewhat out of line but at least he can leave and get a reference...Don't be mortified! U are the right kind of 'ma'!


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## Blueberry08 (3 Apr 2008)

dempster said:


> t was not all one sided. He was not as innocent as he made out and i am furious with him. I am not one of those ma's that think thier kids can do no wrong so i am mortified. i phoned the person who i gave out to and appologised and he was quite gracious.



Good on you - seriously, you deserve absolute respect for coming back here and telling the full story, I'm not sure I'd have had the guts to do it! He's lucky to have a Ma like you, one who doesn't unquestionably think the sun shines out of her young fella's ass. And fair play to you for ringing them to apologise - I've nothing but respect for you.


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## stir crazy (3 Apr 2008)

Lauren said:


> Don't be mortified! U are the right kind of 'ma'!



A good mom I agree but he must be terribly embarassed as a young adult if his mom is fighting his battles for him.  
Just the kind of experience he needs to improve his punctuality in future I'd say.


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## Donnachain (3 Apr 2008)

if anything he has a case money money money for him unfair dismissal. the dismissals procedure was not followed here. he should have been given either a verbal warning or a written warning first. totally unfair.


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## Blueberry08 (4 Apr 2008)

Donnachain said:


> if anything he has a case money money money for him unfair dismissal. the dismissals procedure was not followed here. he should have been given either a verbal warning or a written warning first. totally unfair.



Maybe he was? His mother has admitted she wasn't given the full story by him.


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## Staples (4 Apr 2008)

dempster said:


> He has had a meeting and is back at work so that he can leave under normal circumstances with a referance.


 

He's back so he can leave of his own volition? He's still out of a job but has let the company off the hook completely. While we now know he wasn't squeaky, it still seems procedures weren't followed, if indeed they existed.   

So he'll have a reference. What might that honestly say?  How can you be sure it will be complimentary?


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