final written warning

dade · 08-04-2009 08:25AM #1

ok about a month a god the CEO lost his blackberry, I got a new one in for him and configured it. he asked me to stay late and give him the handset when he was finished at a meeting (suppose to finish at 7pm) I finish work at 5. normally i wouldn't have an issue working late if the situation warrants it coz i work in IT. Anyway I explained to him that on this particular night i was unable to stay because i had college lectures to attend at 6pm (true). but would leave his handset for him on his desk.

that was a Tuesday, Sunday get an email from him saying people can't here him when he's on the phone. I don't have a blackberry and am not required to work on call or check my company email out of hours. SO i only received the mail on Monday morning and replied immediately. i asked him had any of the volume settings changed or had the device fallen or anything. he never replied.

I got called to a meeting and was told i put a complain in and was being given a final written warning. I was with the company 11 months and according to their employee handbook they can fast track discipline for any employee under 12 months service.

anyway obviously i refused to sign the warning, and was afforded the right to appeal. This is where it gets messy. I called Siptu, I'm a member for about 6 years but the company do not have a union. Anyway I said that my union official would represent me during the discipline process but the company are refusing to recognise them. but my understanding is that under SI146 of 2000 i am entitled to union representation during discipline proceedings.

I keep getting letters from HR asking that i sign the warning or appeal (even though my union wrote to her and outlined the grounds for appeal). so I'm getting so p'd off that it's becoming difficult to come to work anymore and I'm considering going to work in McDonald's.

to make matters worse my health is not good at the minute, basically run down from working and college, final year of a night time degree so you cam imagine the stress.

the reasoning behind the warning was a lack of performance, but i have only had one performance review which was in July 08 an that was pretty good. my probation ended in sept 08 and nothing was said, according to the handbook i was due a review in December and this has not happened so again i can only assume that there was noting wrong and that the company were happy with my performance.

so basically what am i asking? am i wrong in my understanding of the law? should i just sign the bloody warning and be done with it. obviously that leaves me in a very precarious situation in that any minor issue and i can be out on my ear. or should i tough it out?

Nody · 08-04-2009 08:53AM

A company can choose not to recognise unions to my knowledge so that would at best be treated as any one else for the appeal.

Fast tracking in the first 12 months sounds a bit odd for a disciplinary process but on the flip coin of it they can let you go with out reason for the first 12 months as well.

At the end of the day if you have not gotten a warning to date I'd appeal it using the reasons given by the union but with out union representation. That is most likely the easiest route for you and if the appeal is not upheld you can possibly use that at a future date for incorrect dismissal (but only possibly).

AARRRGH · 08-04-2009 09:27AM

Unfortunately you haven't reached the 12 months continuous employment by that employer to be covered by full employment rights.

They know this and are trying to get rid of you as they will have a very difficult time (i.e. near impossible) continuining with their current strategy next month.

dade · 08-04-2009 09:36AM

@ AARRRGH
I'm actually over months with them now, the issue came up a week before the 12 month mark, which was April 1st. so i'm with they 12 months and 7 days now

@ Nody
my understanding is that they can ignore the union when dealing with collective bargaining, but not discipline because SI 146 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 Section 4 paragraph 4 states

For the purposes of this Code of Practice, “employee representative” includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise.

it does not stat that the employer can choose to ignore the union as a Representative any place in that document.

Sleipnir · 08-04-2009 09:40AM

His probation ended in September 08 so he is entitled to "full employment rights".
That's why they have had to revert to their disciplinary process. If he was still in probation, they could have just let him go on the spot.

There's no law as "you must be in employment for 1 year before you are covered by full employment rights" that I've ever heard of. Open to correction though.

OP, have you contacted SIPTU and asked them if you are entitled to have one of them sit in on the disciplinary process? I'm sure you are, otherwise what's the point in being a member.

dade · 08-04-2009 10:01AM

Sleipnir wrote: »

There's no law as "you must be in employment for 1 year before you are covered by full employment rights" that I've ever heard of. Open to correction though..

the unfair dismissals act does not come into play until you have completed 12 months regardless of your probation unfortunately.

Sleipnir wrote: »

OP, have you contacted SIPTU and asked them if you are entitled to have one of them sit in on the disciplinary process? I'm sure you are, otherwise what's the point in being a member.

yeah he has said that i was entitled to have one present, that's where i got the info about SI 146.

also according to SI 146 i should be told in advance of the process taking place, the charge against me, the possible sanctions that can be held against me if the allegations are found to be true. Also should have been given the right to representation form the outset and should have been afforded the right to "confront and question witnesses" none of these have been afforded to me.

as for the point of being a member, apart for the obvious, you can get discounts on car and holiday insurance through them LOL

AARRRGH · 08-04-2009 10:19AM

OK, you are there more than 12 months now.

The fact that your only previous performance review is positive stands strongly in your favour.

Have you had verbal warnings about your poor performance?

Has your employer created a plan and worked with you on that plan to improve your performance?

I have tried to get rid of people in the past for under performing at it is near impossible.

Sleipnir wrote:

There's no law as "you must be in employment for 1 year before you are covered by full employment rights" that I've ever heard of. Open to correction though.

http://0.0.7.185/ga/act/pub/0010/sec0002.html#s2_p1

dade · 08-04-2009 10:38AM

AARRRGH wrote: »

Have you had verbal warnings about your poor performance?

none, in fact my last review said i was held in high regard by my team mates.

AARRRGH wrote: »

Has your employer created a plan and worked with you on that plan to improve your performance?

apparently that is part of the process once i just accept the inevitable and sign the warning, which i wont do unless i have no choice and have exhausted all other options. coz it was the CEO and he's trowing his weight around.

to be honest if it was a fair situation and i was acting up and not doing my job etc then i'd hold my hands up high and accept it. But I feel this this a BS and a trumpeted up allegation

AARRRGH wrote: »

http://0.0.7.185/ga/act/pub/0010/sec0002.html#s2_p1

link doesn't work

gerrycollins · 08-04-2009 02:52PM

compliments to you on your knowledge of the law, you are fully right about representation etc I think its the HR people who dont.

At this stage I would consider professional legal advice because they were within their rights to issue a final written warning with the 12 months and that to me sounds like giving you a chance to prove your self again(a harsh way I know)considering they could have just dismissed you.

However along with the warning they are obliged to offer you the chance to appeal, they need to provide you with actual proof of your under performance, have they presented this to you?

AARRRGH · 08-04-2009 03:13PM

dade wrote: »

link doesn't work

Sorry -

http://www.irishstatutebook.ie/1977/en/act/pub/0010/sec0002.html

Look at section 2.

dade · 08-04-2009 03:27PM

gerrycollins wrote: »

compliments to you on your knowledge of the law, you are fully right about representation etc I think its the HR people who don't.

Know your enemy

. I have an interest in employment law after years of being walked over as a younger worker. so i made it a point of learning what i could or at least the sources to get information if needed. My father in law is a long time member of SIPTU and suggested it after i was unfairly selected for redundancy about 8 years ago

gerrycollins wrote: »

At this stage I would consider professional legal advice because they were within their rights to issue a final written warning with the 12 months and that to me sounds like giving you a chance to prove your self again(a harsh way I know)considering they could have just dismissed you..

my union rep has said that if they keep refusing me my right to representation that he will take the matter to a third party, i assume he means rights commissioner. i haven't discussed this with him yet.

what grounds to they have to dismiss me prior to the 12 months? i had received no warnings verbal or otherwise. i was a full time employee and should be afforded the same rights as any other full timer that had more than 12 months (unfair dismissals act aside). so their "fast track" discriminates based on time of service so under SI 146 their discipline process is neither fair nor just.

if the issue was performance related that when my probation expired they should have raised the matter then, 5.5 months after my probation ends they raise it. sorry but they cant retrospectively extend probation like that. if the probation period ends and they do not address any issue the it's safe to assume that there was no issues and they where happy with me as an employee. so any performance related issues would be outside the probation period. as they never held a review in December again it's safe to assume that between Sept 1 and Dec 31 that there was again no issues because other wise they should have been raised. so any performance related issues could only have happened between Jan 1 and Mar 16 the day i was issued the warning.

their letter said continual under performance so given the above information and up until Mar 15 i had received no warnings and my direct manager had never spoken to me about work not done then again it is IMO safe to assume that there are no issues with performance. because if i was a manager if someone under me wa sunder performing i wouldn't wait about to tell them, I'd set up a formal meeting and discuss the matter and then discuss some KPIs and do my best to ensure they met the new targets etc.

gerrycollins wrote: »

However along with the warning they are obliged to offer you the chance to appeal, they need to provide you with actual proof of your under performance, have they presented this to you?

I have been offered an appeal but this is the issue I want my union rep there as is my right they are refusing. so the appeals process has not taken place,. Also no proof of under performance has been provided, my direct manager came out with some crap about stuff that was suppose to be done ( i agreed that it was) but then i told him that all this work had been put on hold because the company could just about afford to pay us and that he had agreed to hold off on most of it. the stuff that was not put on hold was either completed or in progress. I even emailed my manager and I said considering my Probation ended in Sept, and I had no review in Dec as I expected is it safe to assume that up until DEC 31 there was no issue with my performance? his reply wa that my probation was 12 months (i corrected him on this by showing him the handbook/contract) and then he said take the matter up with HR I can't answer that.

dade · 08-04-2009 03:34PM

AARRRGH wrote: »

Sorry -

http://www.irishstatutebook.ie/1977/en/act/pub/0010/sec0002.html

Look at section 2.

2.—(1) This Act shall not apply in relation to any of the following persons:

( a ) an employee (other then a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act,

i assume this is what you refer to. i totally agree the unfair dismissals act did not apply in my case if that had fired me. but they didn't. as i have not past the 12 month period it would apply in my case i believe.

i assume you where talking to Sleipnir when he said there was no such 12 exclusion in the unfair dismissals act

InReality · 08-04-2009 05:10PM

Op I think your pretty much on the right track. I think from all you've said in your post you have a pretty tight case.

I think you should continue your appeal process as planned.

If you don't appeal , my guess is the CEO will just apply more pressure and you could somehow end up out of a job.

If you continue your appeal , i'd say they will keep you on while that process continues.
The CEO could likely forget about his/her tantrum, over time , and as long as they know you won't lie down over this , they may just back off completely.

I realise its a sh*** situation to be in, but on my reading of it your doing the right thing.

gerrycollins · 08-04-2009 10:09PM

to dismiss you prior to your 12 months end they actually dont have to tell you. they can if they want but they are not obliged to. However if you think you were dismissed on equaility grounds before teh 12 months end then you may have a case. I still believe they were "warning" you and giving you a chance hence the "just sign the thing" attitude, very slack IMO.

In term of forwarning you the normal procedure is to "invite" you to a meeting to discuss your performance etc. however in the case of a last minute thing it is accecptable for them to just call you in so long as they explain whats going on and your rights for representation, appeal etc you can at that stage postpone the meeting yourself until you have such representation.

Overall from your posts,granted I'm only hearing your side, IMO the company have flouted every basic rule when dealing with a displinary situation. Stick to your guns you fully entitled to.

Sleipnir · 08-04-2009 10:35PM

AARRRGH wrote: »

http://0.0.7.185/ga/act/pub/0010/sec0002.html#s2_p1

Well, that's the unfair dismissals act but as Dade hasn't been dismissed, so I don't think it really applies anyway. It also doesn't mean that he's not "covered by full employment rights" such as the company following their own disciplinary process etc.

This whole 12 months thing, in your case anyway, would seem to be a red herring. Once you're outside probation, you're entitled to the same fair process as an employee who's there 20 years.

OP, you know more about this than any of us it would seem!

If you take the written warning based on your performance, I guess it would make it much easier for them to dismiss you, based on your performance.

"Hey, you signed this final written warning two months ago which states that you were under-performing. Therefore, you admitted that you were under-performing. We've seen no improvement so we are dismissing you"

They have skipped to the final written warning because that's the last step they can take before dismissing you.
They say they've done that because of the seriousness of the situation even though they've never questioned your performance before, and won't give you the exact reasons. Total Bull****.

As you know that you are entitled to union representation so if it was me, I would print out copies of SI146 highlighting the relevant sections, request a meeting with HR and present them with the information and ask for a response within one or two days. Advise them that if they still refuse your right to have union representation, your union will take your case to a rights commisioner. Of course, you should discuss all this with your union rep first.

dade · 09-04-2009 07:58AM

gerrycollins wrote: »

In term of forwarning you the normal procedure is to "invite" you to a meeting to discuss your performance etc. however in the case of a last minute thing it is acceptable for them to just call you in so long as they explain whats going on and your rights for representation, appeal etc you can at that stage postpone the meeting yourself until you have such representation.

I've been told by my union that they must forewarn you AND afford you the right to seek representation, they must inform you of the allegations against you and the possible sanctions that can be imposed before that meeting even happens. they never did this.

also at the initial meeting it wasn't a case of we feel your under performing give us your side and we'll consider the ramifications and come back to you. it was pretty much "Sit down, your here because the CEO thinks you are not providing him the level of service he expects so your getting a final written, now tell us your side" then i was told i could appeal and some senior manager in the company would hear my appeal if i lodged it within 5 days, like some manager is going to disagree with the owner and CEO of the company.

gerrycollins wrote: »

Overall from your posts,granted I'm only hearing your side, IMO the company have flouted every basic rule when dealing with a disciplinary situation. Stick to your guns you fully entitled to.

I'd post her letters up but that might give the game away as to who i am and who i work for LOL.

my grounds for appeal state that they have ignored my rights, they have not followed any recognised discipline process, the continually refuse me my rights oh an of course the fact that a final written for alleged lack of performance with no prior history of it is total BS and extreme. especially considering the company's discipline history. two lads in the office decided one evening to go three rounds in the corridors after many a consultation both shook hands and the matter dropped. so someone can assault someone shake hands and its left alone but someone doesn't stay late and they're hanging by a thread, again its neither fair nor just.

Sleipnir wrote: »

This whole 12 months thing, in your case anyway, would seem to be a red herring. Once you're outside probation, you're entitled to the same fair process as an employee who's there 20 years. .

which is another reason for my appeal, their discipline process is neither fair nor just for this reason. if I'm full time I'm full time be it I'm there 6 months and 1 day or I'm there 20 years i should be treated the same and their process in this regard is possibly illegal.

Sleipnir wrote: »

If you take the written warning based on your performance, I guess it would make it much easier for them to dismiss you, based on your performance.
.

exactly my feelings, especially when they are in the ****ter financially and need to cut costs, and they did not renew a bunch of contracts for most of the contractors that had working for them last year.

Sleipnir wrote: »

They have skipped to the final written warning because that's the last step they can take before dismissing you.
They say they've done that because of the seriousness of the situation even though they've never questioned your performance before, and won't give you the exact reasons. Total Bull****..

exactly if it was that serious i would have been shown the door, lack of performance IMO is not a reason to fire someone, not reason to being someone up on serious charges. unless there is a long documented history of it, so in your probation you mess up and under perform, you're given the benefit of the doubt so they extend it by 6 months and in that time nothing changes then yeah cut me lose, my situation is the opposite, a glowing review 3 months in stating I'm held i high regard and no complaints or reviews since.

Sleipnir wrote: »

As you know that you are entitled to union representation so if it was me, I would print out copies of SI146 highlighting the relevant sections, request a meeting with HR and present them with the information

my union rep sent her a letter last night doing just this, i nearly wet myself reading it he pretty much said "you really do need to shut up and learn the law before you hang the company" he basically copied the relevant section into the letter and said I'd suggest you familiarise yourself with this legislation and if you continue to ignore our members rights then we will take the matter before the courts.

i get a reply from her today stating that i should serious consider my actions which to me reads as a threat to back down or I'm fired.

Zambia · 09-04-2009 08:11AM

Ok from my understanding

Your being given a final written warning for

Not fixing a Blackberry on a weekend where you where not meant to be working?

Does not seem like a case for even a written warning. That said however your opportunities in this firm under its current administration are pretty screwed going forward.

dade · 09-04-2009 08:20AM

Zambia232 wrote: »

Not fixing a Blackberry on a weekend where you where not meant to be working?
.

and not staying late the previous week coz he wanted me to hand it personally to him and not just leave it on his desk. but unfortunately i had an engagement to attend and the handing over of a blackberry is not IMO an emergency that requires me to stay late.

Zambia232 wrote: »

Does not seem like a case for even a written warning. That said however your opportunities in this firm under its current administration are pretty screwed going forward.

yeah i was thinking of leaving anyway. not learning anything new they don't invest in their IT infrastructure, i have to cannibalise parts and small stuff i do buy is on my Credit card and i claim it back as expenses coz they've used up all their good will with their suppliers

kmick · 09-04-2009 08:26AM

Instead of spending time (and I would class it as wasting time) going to unions, attending meetings etc I would quietly look for another job and then quit when I found one. Also I would not sign anything before I go. I would take a contract role and walk out the door basically. You have to know when to choose your battles sometimes. Its back to the old days of when your boss says jump you ask high and buy him a coffee as well. Be smart and walk now. Try and do it as professionally as possible obviously.

Zambia · 09-04-2009 08:39AM

dade wrote: »

yeah i was thinking of leaving anyway. not learning anything new they don't invest in their IT infrastructure, i have to cannibalise parts and small stuff i do buy is on my Credit card and i claim it back as expenses coz they've used up all their good will with their suppliers

I know how you feel I have been there except i called in my lawyer and asked for him to sit in on the meeting and they could explain to him. That caused a right sh1t storm

However in the end I really just left after everything settled down.

Sleipnir · 09-04-2009 08:46AM

They do have the right to refuse a solicitor sitting in on disciplinary meetings, but not a union rep. It amazes me how little HR knows about the law and even their own procedures.

e.g. I was given a warning last year and was told that if I didn't like it, I could lodge a grievance under their grievance procedure. I read it and it stated;
"This procedure cannot be used as part of the disciplinary procedure"

Idiots didn't even read their own policy.

dade · 09-04-2009 09:10AM

kmick wrote: »

Instead of spending time (and I would class it as wasting time) going to unions, attending meetings etc I would quietly look for another job and then quit when I found one. Also I would not sign anything before I go. I would take a contract role and walk out the door basically. You have to know when to choose your battles sometimes.

Fully intend to, every other night I've been looking, well at least the nights I'm not in college. it's a little slow at the minute but God loves a trier

Zambia232 wrote: »

I know how you feel I have been there except i called in my lawyer and asked for him to sit in on the meeting and they could explain to him. That caused a right sh1t storm

.

i can imagine, especially when they found out that you couldn't actually bring a lawyer into the meetings

Sleipnir wrote: »

They do have the right to refuse a solicitor sitting in on disciplinary meetings, but not a union rep. It amazes me how little HR knows about the law and even their own procedures.

e.g. I was given a warning last year and was told that if I didn't like it, I could lodge a grievance under their grievance procedure. I read it and it stated;
"This procedure cannot be used as part of the disciplinary procedure"

Idiots didn't even read their own policy.

i know it's like they sit their HR management exams (if they even take them) and then its a case that they do what the boss tells them and sure if he says its ok then happy days, and sure who needs to be up skilling and keeping current.

in our case the silly bint is based in NYC, I think she's studying over there so we have no full time on site HR rep and she's probably working from US law and not IE law.

anyway sent her letter on to the union today and as usually cc'd her and just said Please see further letter attached, please call me to discuss. So she can say the company wont discuss the matter with the union or wont write to them but I will send everything to them.

Oh and i forgot how to write, amnesia i think can't remember what my signature is so I'm signing nothing and will sign nothing when i leave.

Zambia · 09-04-2009 09:51AM

dade wrote: »

i can imagine, especially when they found out that you couldn't actually bring a lawyer into the meetings

Well what they where implying was illegal so actually they could not deny my lawyer access if they wanted to ask me about it.

In your case you would be correct

dade · 09-04-2009 09:57AM

union got back to me about her letter. he's referring the matter to the rights commissioner.

guess i better start backing stuff up and borrowing any Intellectual property that i want to keep

Sleipnir · 09-04-2009 10:00AM

Great news. That'll be fun for the HR person to explain to the CEO!

dade · 09-04-2009 10:14AM

true here's to hoping it doesn't get too nasty in here though.

i reckon she'll have a **** fit when she reads his letter and I'll get dragged up on some other BS charge, they may even try and sack me,. But he's warning her that ANY action taken against me until this hearing is held will prejudice their position.

I've every intention of getting out of here and moving jobs, i guess now's a good time.

I'll keep you folks updated on the matter

Xiney · 09-04-2009 11:29AM

I have nothing to add except, fair play! Do keep us updated.

Elessar · 10-04-2009 05:37PM

Posting here to subscribe to thread, keep us informed.

dade · 10-04-2009 06:54PM

well haven't i got a following

teh union sent her an email today, they didn't even bother with a letter. basically they said. we have tried to discuss the matter,we have tried to work with the company but you have refused. Our member has apointed us as his representitve as is his right, on a number of occasions we have put our grounds for appeal forward but you choose to ignore them, we have followed your appeal process and you refuse to recognise this so you have left us no option but to take the matter to teh LRC for adjudication.

We do not recognise your discipline process and any further sanctions you place on our member will only prejudice your position.

I better get in early on tuesday in case my network account is locked out and my desk is cleared off LOL.

honestly though it kinds pisses me off that it's got this far. i mean if i'm wrong then i'm wrong and take my punishment, but all i want is the process to be fair. in this case i feel it wasn't fair, i think the CEO got his panties in a bind coz his blackberry didn't work and no one answered him on a sunday when he sent an email. i just want the punishment to fit teh crime, IMO i have done nothing wrong, there's no past record of misconduct or lack of performanc eon my part, and i just wanted my rights recognised and afforded to me. but they continued to refuse me my rights and continued to say i hadn't appealed. christ I even copied and pasted the content from the unions first letter that outlined the grounds for the appeal and sent it to the HR manager weeks ago and she still insists i havent followed protocol or missed her deadline. i really do thing she suffers from what some techies call an ID10T error code ;-)

well happy easter folks I'll post up if i hear anyting else

bohsboy · 11-04-2009 12:37AM

Staunch it out mate.

Typical management scum trying to bully you out.

Eurorunner · 11-04-2009 07:40AM

I wish the OP the best of luck in his efforts. I used to be totally anti-union up until I joined my current company - believing that they were a negative force. However, my experience with a US multinational (that doesnt recognise unions) has totally changed my opinion on that issue.

HR departments in these places are totally arrogant. Theres a culture of everyone being 'yes' men/women - and ANYONE who doesnt go with the flow is likely to find themselves in bother.

I think this whole policy of only allowing another employee as a witness is flawed and wrong - its something that should be changed. Who wants to implicate (cos its quite possible in some companies that it will be seen this way) another employee in the process? I know in my company, 99% of people would feel too intimidated to go along as witness. Makes it akward then for the 'accused' to have to ask someone.

My lot also don't recognise unions. Some years ago - off my own bat - i went about signing up to a union. However, I found out at the time that its actually stipulated in our contracts that we cannot do so - IS THIS LEGAL??

HR dept.'s in my experience tend to be arrogant in their approach. This arrogance leads them to drop the ball all the time. HOwever, in 99% of cases, they know that they can bully and intimidate the employee into compliance or get their way in terms of expulsion. It is the rare few that are prepared to stand up and be counted - and for that you are to be commended.

Someone mentioned that you should forget about it and find another job. I disagree to an extent. Yes, look for another job - but in the meantime, if you feel that you have a case, fight the bastards. You'll feel all the better for having done so when you come out at the other end of it.

A lot of companies are also prepared to settle outside court (if it gets that far) when it comes to unfair dismissal as cases taken at a lower level (ie. non high court cases) involve smaller sums - and they are prepared to treat these as an overhead. Furthermore, settling out of court avoids the bad publicity that they should have gotten. Most people cannot afford to take things that step further (high court) due to the exorbitant costs involved and due to our legal system, theres still a possibiilty of failure.

The very best of luck. Cover all your bases and keep ahead of them. Will follow this thread with interest.

final written warning

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