lost job

Falconstrike

Hi, Im looking for advice

My house mate just came home with the news that they had been fired.

They work in a pharmacy shop. the reason given for losing their job is that they opened the shop some mornings before the pharmacist arrived. they where told not to do this by manager so stopped doing it.. one week, a locum pharmacist told my housemate to open and go in in the morning if raining so as not to get wet. my housemate did that. manager found out and said that its a breach of trust..so fired my house mate.

they never recieved a warning either verbal or written after the first time and where never chastised on their performance. my house mate tells me that said manager refused to speak to them all day yesterday and just sprung this on them today.

what I want to know is...is this legal? they have a contract although they are there just under 6 months

FreudianSlippers

Falconstrike wrote: »

Hi, Im looking for advice

My house mate just came home with the news that they had been fired.

They work in a pharmacy shop. the reason given for losing their job is that they opened the shop some mornings before the pharmacist arrived. they where told not to do this by manager so stopped doing it.. one week, a locum pharmacist told my housemate to open and go in in the morning if raining so as not to get wet. my housemate did that. manager found out and said that its a breach of trust..so fired my house mate.

they never recieved a warning either verbal or written after the first time and where never chastised on their performance. my house mate tells me that said manager refused to speak to them all day yesterday and just sprung this on them today.

what I want to know is...is this legal? they have a contract although they are there just under 6 months

they where told not to do this by manager

Verbal warning.


They did it again in spite of the warning.

Falconstrike

OisinT wrote: »

Verbal warning.


They did it again in spite of the warning.

I was pretty sure the law was 3 verbals and a written before they could fire and there was also consent from the pharmacist?

FreudianSlippers

It depends fully on the contract. If there is some question of trust or dishonesty offences the employer may reserve the right to terminate without warning.

There is no tried and true rule about how many verbal/written warnings a person must get first.

eurokev

Falconstrike wrote: »

I was pretty sure the law was 3 verbals and a written before they could fire and there was also consent from the pharmacist?

No dismaissal procedures are different for every job. This will be covered by your employment contract. Mosts jobs do follow the procedure you mentioned though. Very sorry for your friend. Bad Form

eurokev

OisinT wrote: »

It depends fully on the contract. If there is some question of trust or dishonesty offences the employer may reserve the right to terminate without warning.

There is no tried and true rule about how many verbal/written warnings a person must get first.

What he said:D

leeroybrown

OisinT wrote: »

Verbal warning.

There's a huge difference between an instruction and a 'verbal warning'. If my employer tells me not to do something I won't consider it a verbal warning unless I'm explicitly told that it is being recorded as such.

Falconstrike

eurokev wrote: »

No dismaissal procedures are different for every job. This will be covered by your employment contract. Mosts jobs do follow the procedure you mentioned though. Very sorry for your friend. Bad Form

ahh thanks..we are picking up the pieces here...apparently the manager smiled all through the meeting while the HR manager was telling her she was gone.

FreudianSlippers

If your "friend" thinks it was unfair and not in line with the terms of the employment contract then they should see a solicitor tomorrow morning.

We cannot answer questions on employment law really. Each job is unique in its contract and what is acceptable conduct. I'm not sure about pharmacies, but it could be that there are certain regulations that were breached in having an employee in the place without a pharmacist - in fact I'd almost say that I'm sure there has to be a rule like that. You cannot expose that kind of level of drugs to the public through unsupervised employees being in the shop.

Nolanger

and then go to the Employment Appeals Tribunal.

Jo King

Nolanger wrote: »

and then go to the Employment Appeals Tribunal.

She is there less than a year so unless she is pregnant the EAT can't be availed of.

Reloc8

Exactly. There's no EAT relief in this case subject to what Jo said above.

The only option is a breach of contract action under which the maximum recoverable would be an appropriate notice period under the contract - which for a 6 month contract is more or less one week's wages.

Reloc8

OisinT wrote: »

It depends fully on the contract. If there is some question of trust or dishonesty offences the employer may reserve the right to terminate without warning.

There is no tried and true rule about how many verbal/written warnings a person must get first.

Actually it 100% doesn't. In an action for unfair dismissal the EAT will look at the reason for dismissal and the process used in dismissing so as to establish whether the reason was lawful and/or the process fair/reasonable. What the contract provides for is irrelevant, saving that if it incorporates a fair procedure process for discipline/dismissal and this procedure was followed the EAT will be somewhat impressed. If the procedure is provided for and not followed the opposite applies. If there is no procedure provided for but an objectively reasonable and fair one was used, you're in much better shape as employer and suffer no prejudice in substance arising from the fact that the procedure was not contractual.


It is specifically impossible to contract out of the provisions of the legislation. It is also not necessary for an employer to specifically reserve the right to terminate employment for one act of gross misconduct.

wyndham

Why did they have the keys of the shop?

Falconstrike

wyndham wrote: »

Why did they have the keys of the shop?

To open up in the mornings when the manager was off and there was a locum on apparently....

From what I have been told since my housemate started working there...that there was always a clash of personalities...so in my mind I was there...constructive dismissal

Reloc8

Yeah but as noted above you have to have 12 months service subject to being pregnant before you can make a claim for constructive dismissal before the EAT.

On what you have said there is nothing worth pursuing here beyond about a weeks wages.

FreudianSlippers

Reloc8 wrote: »

Actually it 100% doesn't. In an action for unfair dismissal the EAT will look at the reason for dismissal and the process used in dismissing so as to establish whether the reason was lawful and/or the process fair/reasonable. What the contract provides for is irrelevant, saving that if it incorporates a fair procedure process for discipline/dismissal and this procedure was followed the EAT will be somewhat impressed. If the procedure is provided for and not followed the opposite applies. If there is no procedure provided for but an objectively reasonable and fair one was used, you're in much better shape as employer and suffer no prejudice in substance arising from the fact that the procedure was not contractual.


It is specifically impossible to contract out of the provisions of the legislation. It is also not necessary for an employer to specifically reserve the right to terminate employment for one act of gross misconduct.

You're right - what I was getting at though was that if there is a contract which contains a procedure then the employer is entitled to rely upon this (as far as warnings go). Of course they could still be liable for unfair dismissal if the EAT felt otherwise.

But, my point was more that in circumstances where it may be in the contract and/or in public interest that an employee be immediately terminated for a certain act then there may be a good defence available to the employer.
My thinking here is that there is access to drugs - the employer may be in a statutory position where they cannot allow employees to access the shop unsupervised. This may be stipulated and warned in the contract.
It's my opinion and understanding of the EAT that where these types of situations arise and there is forewarning about certain unacceptable behaviour - contractual warnings are (or can be sufficient) to show that the actions were justified.

Certainly it is for the tribunal to make that decision, but IMO it goes a long way to showing justification in the circumstances.

ScouseMouse

Jo King wrote: »

She is there less than a year so unless she is pregnant the EAT can't be availed of.

Being pregnant doesnt save anyone. You must prove you were sacked BECAUSE you are pregnant.

This does not apply here.

mstq

NOTE: I'm just a terribad* law student, so don't hold me to anything i say as i don't have qualifications.

locum pharmacist is most likely a superior to normal staff. if it is in their contract that they have to obey his orders, or if they had to obey his orders without meantion in contract by previous statement (such as manger told them before "must obey"), or it is part of their job to obey his orders (such as in army... you are not told to obey sergeants order as corporal. it is assumed you know that and do proceed accordingly) i would say they did everything correctly.

also... were they payed for the time when they had it open early? if so, then it was part of their job.

if i'm full of ****, please let me know ;d


*http://www.urbandictionary.com/define.php?term=Terribad

benjamin d

Might be way wrong here but I was of the impression that if you were there less than six months a reason didn't have to be given for dismissal?

Jo King

superscouse wrote: »

Being pregnant doesnt save anyone. You must prove you were sacked BECAUSE you are pregnant.

This does not apply here.

The reason I mentioned pregnancy is that it is the only exception to the 12 month rule.
In the case of a spurious dismissal it is usually possible to show that it happened after the employer learned of the pregnancy or after some incident connected with the pregnancy. The EAT is pro employee and if the o/ps friends was pregnant it would be possible to blame the dismissal on pregnancy with the opening of the shop a colourable device to get rid of her..

Fey!

wyndham wrote: »

Why did they have the keys of the shop?

That was my first thought, too.

Why did the manager give her keys if she wasn't trusted to open. Between this and being told to enter by the locum AFTER the manager said not to enter (but still leaving her keys to open), then if it was my I'd be assuming that I should enter (last clear instruction from an upper level member of staff being to enter).

If there is a HR manager in the pharmacy, then presumably there is a very large staff or it is a chain. Did your flatmate get the opportunity to defend herself?

Personally, I'd seek advice from the likes of the labour commission (send a detailed email) or the citizens advice bureau; isn't that what they're there for? Alternatively, get her to visit a solicitor competent in the appropriate sections of the law.

Before anything else, get her to write down, preferably in chronological order, all conversations pertaining to her job and procedures as discussed with the manager, HR, and the locum. Clearly. Also include in this the rough dates of when she began employment, when she got a key (which she would need to let herself in), when the manager made his comment, and when the locum made his comment. Include who may have witnessed any conversations/statements, and anyone else whose employment has been terminated over this (if the pharmacy has a HR person, chances are it isn't staffed by one person, let alone a relatively new staff member, on their own, which means that someone else has probably had the same treatment).

Good luck with it.

Reloc8

AAAAAAaaaaaaaaaaaaaaaaaaaaaargh lol

you need 12 months service to get anywhere with this. Do not waste your time or anyone elses writing this down, further investigating it et.c etc. etc. Its just a crappy thing that happened and that's an end to it.

Zambia

From what I know of Pharmacys here having people in the dispensing area without a Pharmacist present is a no no.

Maybe Ireland is different. Reloc8 is really correct in saying its best to move on.

Falconstrike

Zambia232 wrote: »

From what I know of Pharmacys here having people in the dispensing area without a Pharmacist present is a no no.

Maybe Ireland is different. Reloc8 is really correct in saying its best to move on.

you misunderstand...she merely went inside out of the rain..she did not open the shop or go into the dispensery...literally just went in and sat down

oh and she brought home her contract today and I have read it back to front and upside down and there is not a single mention of the above rule...also, she wasnt given a chance to defend herslef and she wasnt asked if she wanted someone present when she was being told she was being dismissed...clear breaches of company policy according to the contract...Im adamant its constructive dismissal...

jenny jinks

Falconstrike wrote: »

y...Im adamant its constructive dismissal...

Constructive dismissal is when a person resigns because of an intolerable situation. This person was sacked.

Zambia232

Zambia232 wrote: »

From what I know of Pharmacys here having people in the dispensing area without a Pharmacist present is a no no.

Maybe Ireland is different. Reloc8 is really correct in saying its best to move on.

This is bang on point. A Pharmacy legally cannot be open (as far as I am aware, not bothered checking legislation but I am 99% sure) without a duly qualified pharmacist on the premises. There are obvious reasons for this.

What your friend did was probably a serious problem for the pharmacy and you cannot be sure that another staff member was not stealing medications etc. and thus your friend may have been opening themselves up to this sort of scenario.

D.McC

I’d tend to agree with the posters urging a legal route. Yes, it is correct that an employee must attain a minimum of 12 months continuous service in order to claim unfair dismissal.

In this case the argument can be made that procedure wasn’t followed and that natural justice wasn’t applied. But it isn't constructive dismissal.

The employee only entered the premises to escape the rain, and did so under the instruction of the responsible person (the locum). The pharmacy wasn’t opened to the public and the notion that dangerous or controlled drugs could be stolen, is nullified by the fact that these items have to be stored securely.

A simple review of the CCTV in use (all pharmacies have CCTV) would reveal nothing else was stolen or tampered with, and indeed the employee had just taking shelter from the elements.

Zambia

I should have been clearer the dispensary is not secured away from the rest of the premises. You would have clear access to the dispensary even if you did not actually go near it.

I know because here a chemist cannot give keys out to non pharmacists. Due to legal reasons.

Reloc8

D.McC wrote: »

I’d tend to agree with the posters urging a legal route. Yes, it is correct that an employee must attain a minimum of 12 months continuous service in order to claim unfair dismissal.

In this case the argument can be made that procedure wasn’t followed and that natural justice wasn’t applied. But it isn't constructive dismissal.

The employee only entered the premises to escape the rain, and did so under the instruction of the responsible person (the locum). The pharmacy wasn’t opened to the public and the notion that dangerous or controlled drugs could be stolen, is nullified by the fact that these items have to be stored securely.

A simple review of the CCTV in use (all pharmacies have CCTV) would reveal nothing else was stolen or tampered with, and indeed the employee had just taking shelter from the elements.

With whatever respect is due, this is simply a load of nonsense. The employee has insufficient service to claim an unfair dismissal.