Termination without notice during notice period (unfair dismissal claim)

Silly_Sheep

Not sure whether anyone can help me, but a friend of mine has been terminated in a slightly shocking way. She was first terminated without sufficient warnings about her performance not being well enough (they somehow told her, but not really in writing and without informing her that not improving would lead to dismissal). She then claimed for unfair dismissal. Currently, she is still in her notice period (should have been paid in lieu of notice) but her employer now terminated her without notice (a second time!) because there was something wrong in her expenses and they claim she has done this on purpose to get more money...

Can they really do this?? Also, does this have an affect on her unfair dismissal claim? Her solicitor does not seem to be the most responsive person ever and I could not find anything on the internet so I wanted to ask whether anyone here might have some experience...

livedadream

Silly_Sheep wrote: »

She was first terminated without sufficient warnings about her performance not being well enough (they somehow told her, but not really in writing and without informing her that not improving would lead to dismissal). She then claimed for unfair dismissal. Currently, she is still in her notice period (should have been paid in lieu of notice) but her employer now terminated her without notice (a second time!) because there was something wrong in her expenses and they claim she has done this on purpose to get more money...

Can they really do this?? Also, does this have an affect on her unfair dismissal claim? Her solicitor does not seem to be the most responsive person ever and I could not find anything on the internet so I wanted to ask whether anyone here might have some experience...

okay slow your ro mate.

how can something be

Silly_Sheep wrote: »

not really in writing

it either was or was not in writing.

she was terminated but allowed to work her notice? you mention being paid in lieu of notice.. if she is claiming unfair dismissal why is she still there?

has she appealed?

has she exhausted all her internal options?

you have said she has a solicitor already, that seems very quick if she is still working her notice. and has not appealed, is it possible the solicitor advised her that she needed to appeal and follow the internal process before getting him involved?

and if she fiddled with her expenses then after an investigation it was found to be true etc it looks bad, and of course they can do it. its theft.

davo10

How long was your friend working there?

If they have proof she fiddled expenses, they should inform her of that proof or at least ask her for clarification. But if she did fiddle them, and they have proof, her problems could get a whole lot worse if they contact the gardai.

Silly_Sheep

livedadream wrote: »

it either was or was not in writing.

she was terminated but allowed to work her notice? you mention being paid in lieu of notice.. if she is claiming unfair dismissal why is she still there?

has she appealed?

has she exhausted all her internal options?

you have said she has a solicitor already, that seems very quick if she is still working her notice. and has not appealed, is it possible the solicitor advised her that she needed to appeal and follow the internal process before getting him involved?

and if she fiddled with her expenses then after an investigation it was found to be true etc it looks bad, and of course they can do it. its theft.

Sorry, she told me about it just recently and with a lot of emotions so it's all pretty new to me. She was working there a little over 1 year. It is some foreign company, eastern Europe by origin I believe, and they have given her a 3 months notice period after 1 year.

What she tells me is that her boss has told her several times she was unhappy with her performance on the phone, picked on certain aspects of performance also in some emails (so yeah, writing), but not really issued a formal warning including giving her time to improve etc.

She then got the notice beginning of August but was asked to work during her notice period. Her boss told her there was no way they would keep her, so did the HR manager. The solicitor she has is a friend of her father's or something, and he told her to appeal for unfair dismissal. As soon as she has informed them about it, they agreed to pay her instead of having her work the rest of her notice, and now they came back and said she should forget it, they have found wrongful expenses and that this is a reason for immediate termination. Also they say it will stop any potential mediation for unfair dismissal.

I don't believe that she has really wanted to steal something, she is just a bit... let's say chaotic some times She paid by accident a hotel room for a private weekend with the company credit card and also had some expenses for lunch on a business trip, however she did not deduct the personal things from the total (she bought a sandwich and a Coke and forgot the make up and some other girl stuff she bought on the same receipt...) and just indicated "lunch" in their reporting system.

livedadream

Silly_Sheep wrote: »

Sorry, she told me about it just recently and with a lot of emotions so it's all pretty new to me. She was working there a little over 1 year. It is some foreign company, eastern Europe by origin I believe, and they have given her a 3 months notice period after 1 year.

Is the company based in Ireland or not?

Silly_Sheep wrote: »

What she tells me is that her boss has told her several times she was unhappy with her performance on the phone, picked on certain aspects of performance also in some emails (so yeah, writing), but not really issued a formal warning including giving her time to improve etc.

it depends its not best practice but it depends on the company you also mention your friend is chaotic (i read that as a bit dopey) so it is possible she was issued a notice via email that her work was not up to scratch?

Silly_Sheep wrote: »

She then got the notice beginning of August but was asked to work during her notice period. Her boss told her there was no way they would keep her, so did the HR manager. The solicitor she has is a friend of her father's or something, and he told her to appeal for unfair dismissal.

you dont appeal for unfair dismissal, so it sounds like the solicitor told ehr to appeal the dismissal to the company.

Silly_Sheep wrote: »

As soon as she has informed them about it, they agreed to pay her instead of having her work the rest of her notice, and now they came back and said she should forget it, they have found wrongful expenses and that this is a reason for immediate termination. Also they say it will stop any potential mediation for unfair dismissal.

its harsh but the fact is she stole from the company. wittingly or unwittingly.

Silly_Sheep wrote: »

I don't believe that she has really wanted to steal something, she is just a bit... let's say chaotic some times She paid by accident a hotel room for a private weekend with the company credit card and also had some expenses for lunch on a business trip, however she did not deduct the personal things from the total (she bought a sandwich and a Coke and forgot the make up and some other girl stuff she bought on the same receipt...) and just indicated "lunch" in their reporting system.

unfortunately what you believe doesnt really come into it, theft is theft, would you say the same if it was your business and you were paying for her weekend away?

witchgirl26

Silly_Sheep wrote: »

I don't believe that she has really wanted to steal something, she is just a bit... let's say chaotic some times She paid by accident a hotel room for a private weekend with the company credit card and also had some expenses for lunch on a business trip, however she did not deduct the personal things from the total (she bought a sandwich and a Coke and forgot the make up and some other girl stuff she bought on the same receipt...) and just indicated "lunch" in their reporting system.

As someone who investigated things like this for a company, intent doesn't really come into it at all. The point is that she had personal items that she did wrongfully claim for. Usually what I would have seen if it was just this was requesting the amount back from the employee and a formal first warning going in. However as this came to light when she was on notice (and potentially already in receipt of a formal warning for performance) then I can see how they took a hardline on it. The make-up might alone not have caused an issue but the private weekend away on a company card is a massive no-no and not something I've ever seen done "by mistake". Sorry but I honestly think with that part she would have a tough time with come back.

Silly_Sheep

livedadream wrote: »

unfortunately what you believe doesnt really come into it, theft is theft, would you say the same if it was your business and you were paying for her weekend away?

Thank you all for your replies.

Of course, if it would be my company I would go ballistics if an employee did something like this and I know I am biased because we've been friends for ages and I know her well enough to know it was not on purpose... Which does not change a Thing, understood.

Regarding your questions: they are not headquartered in Ireland but I think her contract should be under Irish law. However, they seem not to know the employment law here very well (who can blame them, I don't know it myself apparently!).

She has been told by email that her work was not up to standards, however her solicitor said it was not enough (number of emails and period of time over which she received them) and thus recommended she should try to do an unfair dismissal claim (I am no lawyer, I have no clue about such terms, but it is definitely about the dismissal being unfair).

For her there are basically 2 things at stake now:
- The payout of her notice (which is still a 2-months-salary or something) which they refuse to do now - I guess they can do this, as the "theft" is enough reason and it does not matter whether it was on purpose or not, right?
- Her chances in claiming the dismissal was unfair and thus getting compensated for it (she has been dismissed before they saw this, so I don't know whether they really can say the expenses story will affect this?)

davo10

Op, theft is gross misconduct and can result in termination without notice. The evidence of theft would seem to be irrefutable, she used the company credit card for personal use and claimed it as a company expense. It's a double whammy, using the card, then not correcting her mistake immediately by informing them of the nature of the charge on the card.

She can try to claim unfair dismissal but their evidence will not be subjective or open to interpretation, the credit card charge and the expense sheet she submitted will be there in black and white. I think your friend should consider carefully the implications of going to an ET, the facts presented by both sides can be published and your friend may be branded a thief. Also, the company has the option to report the charges on their card as it is theft, if she pushers this, that is likely to be their next move.

Your buddy stole from her employer, she may claim it was an oversight but she had a number of opportunities to correct it. That does not look good. Time for her to move on with her reputation intact.

CruelCoin

Silly_Sheep wrote: »

- Her chances in claiming the dismissal was unfair and thus getting compensated for it (she has been dismissed before they saw this, so I don't know whether they really can say the expenses story will affect this?)

Not sure that you can told you're being let go and for it to then be ok to nick everything in the joint....

She was being dismissed with notice, and that has been upgraded to immediate termination, which is fair for theft imo.

Seeing as how she's being terminated immediately, then the number/format of communications for the previous temination don't matter anymore.

livedadream

davo10 wrote: »

Op, theft is gross misconduct and can result in termination without notice. The evidence of theft would seem to be irrefutable, she used the company credit card for personal use and claimed it as a company expense. It's a double whammy, using the card, then not correcting her mistake immediately by informing them of the nature of the charge on the card.

She can try to claim unfair dismissal but their evidence will not be subjective or open to interpretation, the credit card charge and the expense sheet she submitted will be there in black and white. I think your friend should consider carefully the implications of going to an ET, the facts presented by both sides can be published and your friend may be branded a thief. Also, the company has the option to report the charges on their card as it is theft, if she pushers this, that is likely to be their next move.

Your buddy stole from her employer, she may claim it was an oversight but she had a number of opportunities to correct it. That does not look good. Time for her to move on with her reputation intact.

what he said...

oversight or not, its ilke walking out of tesco with a few bottles of wine in your handbag, oh it was an accident, only she submitted it, signed a form and reviewed it.

twice. doesnt seem like much of an accident to be honest.

cocker5

I don’t know OP – personally I think you are being VERY naive.

Im an accountant and work in a company where lots of employee travel all the time. The company credit card should only ever be used for hotel / food / taxis.

In all my years I have NEVER seen someone purchase anything other than legitimate charges on any company card… if they had personal items they paid separately with their own cash / card who in the right mind puts make up on the company card?? Pay with your own card.

Plus putting it into the system under “lunch” make it twice as bad…completely deceptive…. plus you mentioned this was on two occasions…. (if you believe what she has told you)… Im sorry OP seems very calculated to me … she is just upset and embarrassed she got caught.

Plus she wasn’t actually any good at her job – she should move on and keep quiet OP she might just get away with her reputation intact on this occasion.

witchgirl26

cocker5 wrote: »

I don’t know OP – personally I think you are being VERY naive.

Im an accountant and work in a company where lots of employee travel all the time. The company credit card should only ever be used for hotel / food / taxis.

In all my years I have NEVER seen someone purchase anything other than legitimate charges on any company card… if they had personal items they paid separately with their own cash / card who in the right mind puts make up on the company card?? Pay with your own card.

Plus putting it into the system under “lunch” make it twice as bad…completely deceptive…. plus you mentioned this was on two occasions…. (if you believe what she has told you)… Im sorry OP seems very calculated to me … she is just upset and embarrassed she got caught.

Plus she wasn’t actually any good at her job – she should move on and keep quiet OP she might just get away with her reputation intact on this occasion.

I wouldn't say I never saw it in my old company (current one doesn't have corporate cards) but there was always a way to mark specific items as personal as opposed to genuine expenses. They understood that sometimes it was easier to pay with one method of payment for a few items but you couldn't claim them.

As I said before - companies might forgive a few small items that were personal as part of a bigger transaction if the employee was willing to pay them back but there isn't an excuse for booking a private hotel with the corporate card.

I don't think she can claim unfair dismissal at this point as the company can just point to the hotel expense and that is grounds for termination so I wouldn't say she'll get much there. Also I don't know if the payment of notice would actually happen now either. For gross misconduct you can be fired immediately with no notice so they could say that because of new evidence, this would fall under that.

The expenses will affect it as it was found while she was still an employee and technically serving out her notice. If it on it's own was enough to dismiss her than it can be taken into account.

dreamers75

Sadly if the company does not have all the steps that happened above in their disciplinary procedure then your mate has a case for unfair dismissal.

So ask your mate to get a copy of the companys procedures, theft, murder, riding around on pallet trucks and putting it on youtube matter little if the company did not follow their disciplinary procedure in dismissing the person.

If the company did follow their procedure, tell your mate to move on and dont use them as a reference.

davo10

As a ground for fair dismissal the term conduct covers a very large area of behaviour. There is a need to distinguish between gross misconduct and ordinary instances of misconduct.

Gross misconduct may give rise to instant (summary) dismissal without notice or pay in lieu of notice. Examples of gross misconduct include assault, drunkenness, stealing, bullying or serious breach of your employer's policies and practices. Your contract of employment may contain further information concerning gross misconduct.

Ordinary instances of misconduct may be a series of minor incidents which, when taken together, are enough to warrant dismissal, although your employer is obliged to give you notice or pay in lieu of notice in this type of situation.

Your employer will need to investigate each situation adequately to obtain all the facts of the case. Except in cases of gross misconduct, you must have been given appropriate warnings about your conduct and been made aware that dismissal might result if the problems continue. If this has been done, the dismissal is fair, because you have been given a chance to improve your conduct.

The Workplace Relations Commission's Code of Practice: Grievance and Disciplinary Procedures states that employers should have written grievance and disciplinary procedures and they should give employees copies of these at the start of their employment. Under the unfair dismissals legislation employers are required to give the employee in written notice of the procedures to be followed before an employee is dismissed. This must be done within 28 days of entering the contract of employment.

CruelCoin

dreamers75 wrote: »

Sadly if the company does not have all the steps that happened above in their disciplinary procedure then your mate has a case for unfair dismissal.

So ask your mate to get a copy of the companys procedures, theft, murder, riding around on pallet trucks and putting it on youtube matter little if the company did not follow their disciplinary procedure in dismissing the person.

If the company did follow their procedure, tell your mate to move on and dont use them as a reference.

Nonsense. Not having procedures on paper does not give you licence to do as you like.
Theft is grounds for immediate termination, contract or no.

Senna

CruelCoin wrote: »

Nonsense. Not having procedures on paper does not give you licence to do as you like.
Theft is grounds for immediate termination, contract or no.

I wouldn't be too sure if pervious Employment Tribunals are anything to go by, especially the drunk life guard asleep in the broom closet while a child almost drowned, winning her case.

davo10

Senna wrote: »

I wouldn't be too sure if pervious Employment Tribunals are anything to go by, especially the drunk life guard asleep in the broom closet while a child almost drowned, winning her case.

The theft in this case is a little bit easier to prove and theft itself is recognised as an example of gross misconduct which can result in summary dismissal. There have been cases where employees took items and forgot to pay or meant to pay later. In this case it is a large amount of money used outside the business and then a false expenses claim was submitted. It's hard to spin that as a simple mistake or oversight.