sacked for missing one shift

[Sunny]

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.

 

[greenfield]

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.

 

[shipibo]

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

 

[foxylady]

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.

 

[Purple]

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.

 

[csirl]

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?

 

[greenfield]

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.

 

[Flax]

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.

 

[dempster]

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.

 

[Lauren]

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'!

 

[Blueberry08]

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.

 

[stir crazy]

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.

 

[Donnachain]

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.

 

[Blueberry08]

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.

 

[Staples]

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?