Punished twice for the same offence

Snakeweasel

Hi Guys, trying to help a friend out with a problem they have with a now former employer.

Essentially, friend was an apprentice, working for a company for approx 3 months, so I know they are not covered by unfair dismissals.

However, they have quite a confusing story, essentially, friend was sick one day, company has rule to ring in before 9 if you are going to be sick. Friend rang at 9.15am from doctors. Friend received a verbal warning for this in an informal meeting with two managers, but was not invited formally to a disciplinary hearing or offered representation. Nor did friend receive written confirmation of warning.

Friend missed another day due to same illness and was not physically fit to ring before 10am. Once again, pulled aside by same two managers, told they were getting a written warning. Once again, no invitation, no offer of representation, no written confirmation of said written warning.

Finally, friend was invited by letter to disciplinary hearing to deal with the above two dates, no offer of representation. Same two managers again held this hearing, at the end of the hearing, friend was dismissed and told not to return to the place of work. No mention of right to appeal. Friend now waiting on written confirmation, but given actions of employer to date, not expecting it.

Sorry for the essay! Its just a confusing one to me and I am wondering if my friend has a claim under the industrial relations act due to the procedural issues and the fact that they were essentially dismissed for something that they had already been disciplined for. Any advice is welcome!

amdublin

Sick twice in first two months?
And both times rang after 9am rule?

I really don't think your friend should be surprised he was not kept on.

What was wrong with him/her that could not make a call on the mobile before 9am?

davo10

Snakeweasel wrote: »

Hi Guys, trying to help a friend out with a problem they have with a now former employer.

Essentially, friend was an apprentice, working for a company for approx 3 months, so I know they are not covered by unfair dismissals.

However, they have quite a confusing story, essentially, friend was sick one day, company has rule to ring in before 9 if you are going to be sick. Friend rang at 9.15am from doctors. Friend received a verbal warning for this in an informal meeting with two managers, but was not invited formally to a disciplinary hearing or offered representation. Nor did friend receive written confirmation of warning.

Friend missed another day due to same illness and was not physically fit to ring before 10am. Once again, pulled aside by same two managers, told they were getting a written warning. Once again, no invitation, no offer of representation, no written confirmation of said written warning.

Finally, friend was invited by letter to disciplinary hearing to deal with the above two dates, no offer of representation. Same two managers again held this hearing, at the end of the hearing, friend was dismissed and told not to return to the place of work. No mention of right to appeal. Friend now waiting on written confirmation, but given actions of employer to date, not expecting it.

Sorry for the essay! Its just a confusing one to me and I am wondering if my friend has a claim under the industrial relations act due to the procedural issues and the fact that they were essentially dismissed for something that they had already been disciplined for. Any advice is welcome!

Time for your friend to move on, I assume he has a mobile phone so he could have phoned before the required time. Lesson learned. As he was likely on probation and had worked there less than one year, they didn't even need to go through the process of giving warnings, they could have just let him go.

mel123

The rules are they were meant to ring in before 9, and on neither occasion did they do this. I'm sitting here trying to think of any reason at all that would prevent someone from picking up the phone to make a quick call.
Not only did they do it once, they did it a second time, knowing that the first time they got a warning for it.
I dont mean to sound harsh, but if they wanted to keep their job, they should not have been acting like this in the first three months of working for an employer.
I wouldnt think they have much grounds for any kind of case at all.

Miaireland

Your friend is not being punished for the same mistake twice.

He rang in after 9 am both times despite knowing that you had to ring before nine.

To be fair to the employers they did not have to give him a warning.

Snakeweasel

amdublin wrote: »

Sick twice in first two months?
And both times rang after 9am rule?

I really don't think your friend should be surprised he was not kept on.

What was wrong with him/her that could not make a call on the mobile before 9am?

Not sure why they couldn't ring any earlier the first time, I still have to have a proper chat to them about it so don't want to make any assumptions.

The second time my friend assures me that they were in that much pain from the same condition that they were physically bent over with pain and unable to ring in before that time. I know most will read this and assume hangover, but I have been assured that it wast a genuine sickness which they were certified for.

My confusion was down to the fact that these two issues were already dealt with via the warnings.

Jonti

Friend should go to citizensrights and tell his case. Employers can and will be done for not following proper disciplinary procedures.
Very good chance he'll win his case.

Snakeweasel

Miaireland wrote: »

Your friend is not being punished for the same mistake twice.

He rang in after 9 am both times despite knowing that you had to ring before nine.

To be fair to the employers they did not have to give him a warning.

I fully appreciate that they didn't have to, but the fact remains that they did. I usually fight these cases from the other side so I know that I would want to slap one of our managers if they did something like this just for the amount of time it would take me to clean up!

amdublin

Jonti wrote: »

Friend should go to citizensrights and tell his case. Employers can and will be done for not following proper disciplinary procedures.
Very good chance he'll win his case.

No I don't think this is correct. Employee was with company for three months (under a year/on probation) doesn't have a leg to stand on.

listermint

Jonti wrote: »

Friend should go to citizensrights and tell his case. Employers can and will be done for not following proper disciplinary procedures.
Very good chance he'll win his case.

Clearly from your posts in other threads you are having a jolly today.

amdublin

Snakeweasel wrote: »

Not sure why they couldn't ring any earlier the first time, I still have to have a proper chat to them about it so don't want to make any assumptions.

The second time my friend assures me that they were in that much pain from the same condition that they were physically bent over with pain and unable to ring in before that time. I know most will read this and assume hangover, but I have been assured that it wast a genuine sickness which they were certified for.

My confusion was down to the fact that these two issues were already dealt with via the warnings.

Oh come on! Pull the other one!

Was able to ring at 10. But not at 9.

Was s/he on an operating table getting his/her appendix out at 9?? That's the only pain I can think of would prevent someone making a 2 min phone call.

Snakeweasel

amdublin wrote: »

No I don't think this is correct. Employee was with company for three months (under a year/on probation) doesn't have a leg to stand on.

Not true, there are cases under the industrial relations act that fall within the one year limit and I was wondering if this case could be one of those!

Snakeweasel

amdublin wrote: »

Oh come on! Pull the other one!

Was able to ring at 10. But not at 9.

Was s/he on an operating table getting his/her appendix out at 9?? That's the only pain I can think of would prevent someone making a 2 min phone call.

But you keep avoiding my point, I get that the employer didn't have to give the warnings. However they did give warnings, ie they dealt with the issue and didn't follow correct proceedings and the rules of natural justice weren't applied to the procedures that they did do.

Stheno

Snakeweasel wrote: »

But you keep avoiding my point, I get that the employer didn't have to give the warnings. However they did give warnings, ie they dealt with the issue and didn't follow correct proceedings and the rules of natural justice weren't applied to the procedures that they did do.

What rules of natural justice? Your friend broke the rules twice and was let go.

Move on, simple as.

Kimbot

He could have even texted someone in work or gotten someone else to ring in for him if he was in such a bad way. Rules are rules and if you break them then you have to expect some form of Punishment.

amdublin

Snakeweasel wrote: »

But you keep avoiding my point, I get that the employer didn't have to give the warnings. However they did give warnings, ie they dealt with the issue and didn't follow correct proceedings and the rules of natural justice weren't applied to the procedures that they did do.

So they tried help your friend. And he/she didn't take the hint/the help. And this is the employees fault now?

Just because they gave warnings does not mean they have to do anything else. You friend can and was let go.

Your friend needs to learn from this. They shoild realky have been avoiding calling in sixk at all costs firstly. But defibitely should have followed the rules. Seriously what was wrong with them that they couldn't ring before 9?

gctest50

Snakeweasel wrote: »

...........

The second time my friend assures me that they were in that much pain from the same condition that they were physically bent over with pain and unable to ring in before that time..................

"Contractions 3 minutes apart and still takes her Psychology Test"

https://www.facebook.com/photo.php?fbid=10153188917676643&set=a.10150344379841643.349904.650751642&type=3

.

Miaireland

To be honest even double over in pain he could probably dial and say his name and say that he was calling in sick. I had to ring my boss in the middle of being sick with severe food poisoning. He literally got it Mia, I am sick and will not be in to day. Will call later. It wasn't pleasant but it had to be done.


Procedure does not apply in this case and I don't even know what you mean by rules of natural justice.

Your friend did something wrong (the employer gave him a chance, nice employer he did not have to) Your friend did something wrong another time (your friend got dissmissed).

You need to tell your friend to cop on rather than going on about natural justice etc.

shane9689

Jesus, no mercy for the weak here.....

Flippyfloppy

Sounds like they were covering themselves with the warnings & then realized this procedure was unnecessary as he was only there a couple of months. Hence no final warning. I'm sure they felt they couldn't rely on him, he got off to a really bad start.

davo10

Jonti wrote: »

Friend should go to citizensrights and tell his case. Employers can and will be done for not following proper disciplinary procedures.
Very good chance he'll win his case.

Employment under one year means that for the most part he does not of protection of the Unfair Dismissals Act, also an employee can be let go without reason during probationary period

mel123

As a matter of interest, what does your mate want to happen?
Their job back, or money as compensation??

Mrs OBumble

I think there are some provisions that he could use to argue this (there was a lad in Galway who claimed for something and won the case even though he'd been there less than a year). You'd need to ask a specialist lawyer about this.

That said, an apprentice who twice in three months has a sickness which prevents them from making a phone call. Really? I don't know any any apprenticeship style jobs which could accommodate such a fragile person. Time to look for something s/he's a better fit for.

And while it may benefit him/her in the short term to sue for damages, I'd be worried about the long term career harm this might do.

Snakeweasel

Starting to realise that if people on here don't know what the rules of natural justice are, then they are clearly in no position to offer advice. I am well aware that my friend has no claim under the unfair dismissals acts, that has never been in doubt. My question is and always has been, do they have a claim under the industrial relations act, or something like breach of contract. I retract my earlier statement of any advice welcome, if you are just going to jump in with "they have less than a year move on" or "they broke the rules so have no rights" please move along, it has been said already.

dodzy

If I was the boss, and between the 2 occasions of absence, your 'mate' was a solid performer, i'd probably have been lenient. My guess his performance was average at best, thereby sealing his fate at the second occurrence. Game over. Pursuance will prove fruitless IMO.

amdublin

Snakeweasel wrote: »

Starting to realise that if people on here don't know what the rules of natural justice are, then they are clearly in no position to offer advice. I am well aware that my friend has no claim under the unfair dismissals acts, that has never been in doubt. My question is and always has been, do they have a claim under the industrial relations act, or something like breach of contract. I retract my earlier statement of any advice welcome, if you are just going to jump in with "they have less than a year move on" or "they broke the rules so have no rights" please move along, it has been said already.

This advice here is good. Especially the bolded parts.


For "specialist lawyer" read ka ching, ka ching. Does your friend have any money?

Mrs OBumble wrote: »

I think there are some provisions that he could use to argue this (there was a lad in Galway who claimed for something and won the case even though he'd been there less than a year). You'd need to ask a specialist lawyer about this.

That said, an apprentice who twice in three months has a sickness which prevents them from making a phone call. Really? I don't know any any apprenticeship style jobs which could accommodate such a fragile person. Time to look for something s/he's a better fit for.

And while it may benefit him/her in the short term to sue for damages, I'd be worried about the long term career harm this might do..

_Brian

To be honest since he's only been employed for 3 months they could let him go and just say its not working out - goodbye, no explanation or appeals required.

How sick is someone that they can't lift a phone to their head and make a call... seriously. I've dealt with this very topic several times and there is nothing that keeps you from making one phone call to save your job. He was already on a warning and then doesn't ring on time.. bad form.

Your "friend" needs to move on and learn. Employers have rules, you stick to the rules or you don't, usually if you don't it doesn't end well..

davo10

Snakeweasel wrote: »

Starting to realise that if people on here don't know what the rules of natural justice are, then they are clearly in no position to offer advice. I am well aware that my friend has no claim under the unfair dismissals acts, that has never been in doubt. My question is and always has been, do they have a claim under the industrial relations act, or something like breach of contract. I retract my earlier statement of any advice welcome, if you are just going to jump in with "they have less than a year move on" or "they broke the rules so have no rights" please move along, it has been said already.

What advice are you looking for? The unfair dismissals act and rules governing probationary periods are on point.

Snakeweasel

dodzy wrote: »

If I was the boss, and between the 2 occasions of absence, your 'mate' was a solid performer, i'd probably have been lenient. My guess his performance was average at best, thereby sealing his fate at the second occurrence. Game over. Pursuance will prove fruitless IMO.

Yeah thats the thing, maybe I'm overthinking it and always worried about what the employee can claim for in my usual working role. Like if the company were flawed in their procedures, and didn't get pulled up about performance, there are cases where employees have won based under the industrial relations act when they proved that the employer just used something small as an excuse to fire them for performance issues.

Snakeweasel

davo10 wrote: »

What advice are you looking for? The unfair dismissals act and rules governing probationary periods are on point.

Industrial relations act, breach of contract, hell even employment equality acts if they touched on any of the 9 grounds at any point of my friends employment!

Snakeweasel

amdublin wrote: »

This advice here is good. Especially the bolded parts.


For "specialist lawyer" read ka ching, ka ching. Does your friend have any money?

Thats why I came on here, they were going to go straight to a solicitor and I didn't want them to waste their time if they didn't have a case, because I know that they wouldn't have much money to pay a solicitor if it didn't go their way. Sorry if I seemed a bit short in my last reply, its just that I get the unfair dismissals issue, there are just many others avenues when it comes to dismissing someone incorrectly that isn't covered by unfair dismissals acts.

Stheno

Snakeweasel wrote: »

Thats why I came on here, they were going to go straight to a solicitor and I didn't want them to waste their time if they didn't have a case, because I know that they wouldn't have much money to pay a solicitor if it didn't go their way. Sorry if I seemed a bit short in my last reply, its just that I get the unfair dismissals issue, there are just many others avenues when it comes to dismissing someone incorrectly that isn't covered by unfair dismissals acts.

You won't get legal advice on here above "go see a solicitor"

Snakeweasel

Stheno wrote: »

You won't get legal advice on here above "go see a solicitor"

I appreciate that but hoped that someone on here might have an idea of the industrial relations act, but it appears not!

davo10

Snakeweasel wrote: »

I appreciate that but hoped that someone on here might have an idea of the industrial relations act, but it appears not!

You feel your friend was dismissed unfairly, there is a specific act which covers this, it's called The Unfair Dismissals Act funnily enough. You can google this Act and read through it to see if it offers any hope to your friend. In relation to breach of contract, your friend most likely breached his contract when he didn't inform his employer in a timely fashion, twice. Employment contracts also have a probationary clause which states that the employee is not deemed permanently employed until the probationary period has elapsed, in other words they can say bye bye for any reason during that time without breaching the contract. Lastly, the nine points you refer to I presume are the grounds for claiming discrimination, sacking someone for not following absence procedure is not discriminatory. If your friend wants to part with a pot full of money and wait a couple of years for the case to come up, off to an employment lawyers office with you.

Snakeweasel

davo10 wrote: »

You feel your friend was dismissed unfairly, there is a specific act which covers this, it's called The Unfair Dismissals Act funnily enough. You can google this Act and read through it to see if it offers any hope to your friend. In relation to breach of contract, your friend most likely breached his contract when he didn't inform his employer in a timely fashion, twice. Employment contracts also have a probationary clause which states that the employee is not deemed permanently employed until the probationary period has elapsed, in other words they can say bye bye for any reason during that time without breaching the contract. Lastly, the nine points you refer to I presume are the grounds for claiming discrimination, sacking someone for not following absence procedure is not discriminatory. If your friend wants to part with a pot full of money and wait a couple of years for the case to come up, off to an employment lawyers office with you.

Oh dear god, I have explained that I am fully aware that my friend isn't covered by unfair dismissals, if you think that is the only piece of legislation of relevance in dismissals of someone with under one years service then you clearly have no clue what you are talking about! And if you think it takes a few years for a case to come up you clearly have no clue about the changes brought in by the workplace relations bill. BTW I may have been a little facetious regarding the equality comment in case you missed that :rolleyes:

davo10

Snakeweasel wrote: »

Oh dear god, I have explained that I am fully aware that my friend isn't covered by unfair dismissals, if you think that is the only piece of legislation of relevance in dismissals of someone with under one years service then you clearly have no clue what you are talking about! And if you think it takes a few years for a case to come up you clearly have no clue about the changes brought in by the workplace relations bill. BTW I may have been a little facetious regarding the equality comment in case you missed that :rolleyes:

Hey, you asked for advice and so far everyone has pointed you in the direction of the relevant legislation. If that isn't what you want to hear, go read all workplace relations bills yourself or pay a solicitor for advice. Just because you don't like the answers doesn't mean we are all clueless. A lot of posters here have knowledge of HR matters and are happy to give you the benefit of their experience.

Bandana boy

It appears to me you friend was let go , you know that this was not unfair and are now asking for advice on other avenues he can take to sue an employer who fairly let him go.
I am afraid you want a different forum , you will not get advice on that type of action here , not because there are not people who know about the other acts , but because we are not dishonest and help you defraud a settlement out of this company

Snakeweasel

davo10 wrote: »

Hey, you asked for advice and so far everyone has pointed you in the direction of the relevant legislation. If that isn't what you want to hear, go read all workplace relations bills yourself or pay a solicitor for advice. Just because you don't like the answers doesn't mean we are all clueless. A lot of posters here have knowledge of HR matters and are happy to give you the benefit of their experience.

I apologise if thats how it appears but it isnt the case! I have plenty of experience of HR issues myself, but have only touched on the possibility of an employee taking a case against us using the industrial relations act, as they had less than one years experience. As nothing came of that, I wouldnt have first hand experience of how the act can be applied and was hoping that maybe someone had experience being either on the employee or employer side of this piece of legislation and how it may have applied. I was shown case law examples of this at the time of our own scare, but am struggling to find them for myself, so was hoping that someone else was familiar with cases (which one or two posters seem to be). I was just getting annoyed that the question that I posing was being ignored whilst the point I explicitly said I was aware of kept getting rehashed.

amdublin

I know you are just trying to help your friend but I honestly think what will help him/her more is the lesson about following all the rules while on probation and onwards in his/her working career.

Snakeweasel

Bandana boy wrote: »

It appears to me you friend was let go , you know that this was not unfair and are now asking for advice on other avenues he can take to sue an employer who fairly let him go.
I am afraid you want a different forum , you will not get advice on that type of action here , not because there are not people who know about the other acts , but because we are not dishonest and help you defraud a settlement out of this company

What are you on about? where is there dishonesty in anything I have posted? So you think that it was ok for someone to be punished for something and then punished for it again?

davo10

Snakeweasel wrote: »

I apologise if thats how it appears but it isnt the case! I have plenty of experience of HR issues myself, but have only touched on the possibility of an employee taking a case against us using the industrial relations act, as they had less than one years experience. As nothing came of that, I wouldnt have first hand experience of how the act can be applied and was hoping that maybe someone had experience being either on the employee or employer side of this piece of legislation and how it may have applied. I was shown case law examples of this at the time of our own scare, but am struggling to find them for myself, so was hoping that someone else was familiar with cases (which one or two posters seem to be). I was just getting annoyed that the question that I posing was being ignored whilst the point I explicitly said I was aware of kept getting rehashed.

Have you considered posting in the Legal Discussion forum, you will have to phrase your question in a hypothetical sense and ask to be pointed in the right direction. And don't be so condescending over there, they will eat you alive.

Snakeweasel

amdublin wrote: »

I know you are just trying to help your friend but I honestly think what will help him/her more is the lesson about following all the rules while on probation and onwards in his/her working career.

I completely get that, yeah I am probably trying to clutch at straws, but we have lost much more clear cut cases than this hence asking on here. To be honest I have my own suspicions that my friends employer might have regretted hiring them and used this as a way of getting rid, there was a similar case with the post office in 2011. But my point is, and would be the same if advising managers at work, that it is safer to manage out poor performers and it closes off the possibility of a case.

easygoing1982

Snakeweasel wrote: »

I apologise if thats how it appears but it isnt the case. I was just getting annoyed that the question that I posing was being ignored whilst the point I explicitly said I was aware of kept getting rehashed.

Your question isn't being ignored.Posters are being very patient here and some have given very detailed answers but you have taken offence to the answers as no where in the answers does it say your friend has a case for legal action or whatever else your looking for

sonny.knowles

Snakeweasel wrote: »

But you keep avoiding my point, I get that the employer didn't have to give the warnings. However they did give warnings, ie they dealt with the issue and didn't follow correct proceedings and the rules of natural justice weren't applied to the procedures that they did do.

Freeman stuff?

Snakeweasel

davo10 wrote: »

Have you considered posting in the Legal Discussion forum, you will have to phrase your question in a hypothetical sense and ask to be pointed in the right direction. And don't be so condescending over there, they will eat you alive.

Genuinely thought that this was the most appropriate place to post, if its more suitable over there then I completely apologise.

amdublin

Snakeweasel wrote: »

I completely get that, yeah I am probably trying to clutch at straws, but we have lost much more clear cut cases than this hence asking on here. To be honest I have my own suspicions that my friends employer might have regretted hiring them and used this as a way of getting rid, there was a similar case with the post office in 2011. But my point is, and would be the same if advising managers at work, that it is safer to manage out poor performers and it closes off the possibility of a case.

Tbh I'd wager they regretted hiring them the day they first called in sick after 9am. And even more so the second time they did the same thing.
Even the most amazing performer is going to be clawing back from that type of carry on.

Bandana boy

Snakeweasel wrote: »

What are you on about? where is there dishonesty in anything I have posted? So you think that it was ok for someone to be punished for something and then punished for it again?

I would read this as they followed a procedure that resulted in two warnings for two issues , a separate review from a probationary point of view was then done and the warnings were taken into account and it was decided that two warnings and maybe some performance issues were sufficient grounds that the probationary period had been failed. On this basis your friend was let go.

One could argue that they have been very fair to your friend , and did not make the probation decision in the heat of the moment of a warning but let it settle and be reviewed calmly after the fact.

I think your friend will find they have followed procedures above and beyond any legislative requirement

MarkAnthony

If this was a law lecture, yes there are issues with fair procedure and not having access to EAT and the unfair dismissals process is not the be all and end all.

All that said you're mate is a messer and if they had just said you're gone matey he'd have had no comeback. That will feature heavily in any award. I'd expect damages of a token amount of €1 but if it's that much of an issue, you've a an entitlement to have your rights vindicated.

petes

Snakeweasel wrote: »

So you think that it was ok for someone to be punished for something and then punished for it again?

How so? They were punished for doing the same thing twice not punished twice for the same thing.

Snakeweasel

petes wrote: »

How so? They were punished for doing the same thing twice not punished twice for the same thing.

In that she received a verbal warning for the first instance, which in most situations means case closed on that one. Then received a second warning for the second instance, case closed on that one too.

To then receive a letter, inviting to a disciplinary hearing regarding these issues, that would be considered punishing twice for the same offence in any case I have experience with.

I assume that double jeopardy doesn't apply in internal procedures but was just wondering if my friend had any avenue linked to it, such as the IR act.

Snakeweasel

Bandana boy wrote: »

I would read this as they followed a procedure that resulted in two warnings for two issues , a separate review from a probationary point of view was then done and the warnings were taken into account and it was decided that two warnings and maybe some performance issues were sufficient grounds that the probationary period had been failed. On this basis your friend was let go.

One could argue that they have been very fair to your friend , and did not make the probation decision in the heat of the moment of a warning but let it settle and be reviewed calmly after the fact.

I think your friend will find they have followed procedures above and beyond any legislative requirement

Not the case, she was given two warnings, ie case closed on those issues. She was then invited to a disciplinary hearing, not a probationary review, the phrasing around what the meeting is called would have a relevance. As the poster below you said, the employer could more easily have said "this isnt working out, good luck to you" and my friend wouldn't have a come back. They may well have breached their own procedures by not allowing an appeal or the right to representation, and that is why I was wondering if the IR act would apply. I think most people would try to help their friend defend themselves if they were treated badly, even if their friend contributed to it.