Legal advice employer issue-so stressed out!!!

fairycakes · 02-08-2015 11:49am #1

Hi all I badly need some expert advice. I am called into a disciplinary meeting with my work. I have basically been shafted by other workmates and now management are basically saying i have done a gross misconduct and have said i can have a work colleague or someone else in the meeting with me as a representative. I am the kind of person that could easily get swallowed up here as I am sensitive and really hate any sort of conflict!! (the work colleagues knew who to pick on!!). I wanted to ask is there anywhere i can get free legal advice and if they can come with me to the meeting? I haven't much money so I don't know what to do any help with this would be much appreciated!.

Also can anybody tell me with regards annually leave if you work them and get extra money for working on the day are you also entitled to extra annually leave hours?? and if a company dismisses you are you still in entitled to all your annual leave? thanks!!

Stheno · 02-08-2015 11:59am

Maybe contact the legal advice board? You can Google their details

It's most unlikely you'll be allowed bring them to your meeting

godtabh · 02-08-2015 12:09pm

Are you in a union? Consult a union rep and ask them to attend with you if you are.

Does your company have a disciplinary manual? Read that if so. Also consult the citizen information website and NERA. There is a lot of useful information there

fairycakes · 02-08-2015 12:15pm

no not in a union, never in my life had to be in a disciplinary meeting like this. The company has policies and procedures manual and to me looks very vague..hence why I need to talk to an expert and at least I am prepared. Thanks I will look at NERA! thanks a mill!

Rob Thomas · 02-08-2015 12:58pm

Your company policy will dictate if you can bring a legal rep into the meeting but as advised, it's highly unlikely.

You need to understand that you can usually be dismissed at this meeting if you are found guilty of gross misconduct so make sure you have prepared properly.

If colleagues have stitched you up, you won't be sacked. Even if your company has rubbish policies there are legal standards to protect you. But if the influence of others has made you do something yourself which is wrong you will need expert help.

Consult NERA and your citizen advice office. Remember, you can usually postpone the meeting once, so do this if you are under time pressure to get the correct advice.

Good luck

fairycakes · 02-08-2015 1:29pm

Thank you for the advice much appreciated!!

MarkAnthony · 02-08-2015 10:28pm

FLAC will provide you with proper advice for free. I highly recommend a good employment law solicitor be engaged though. The question is always cost, to which the reply should always be isn't it cheaper to keep the job/be terminated with a good reference and a payment?

You'll find that most will give a short initial consultation for free (In Dublin anyway). The advice and support you'll be given will pay dividends.

Best of luck OP.

fairycakes · 02-08-2015 10:36pm

Thank you I will check them out. Just wondering are you allowed to join the trade union after an incident? or do you have to be an existing member to have them represent you?

Stheno · 02-08-2015 10:37pm

fairycakes wrote: »

Thank you I will check them out. Just wondering are you allowed to join the trade union after an incident? or do you have to be an existing member to have them represent you?

Usually you need to be an existing member, and your company have to acknowledge the union. Companies do not have to compulsorily liaise with trade unions.

MarkAnthony · 02-08-2015 10:39pm

fairycakes wrote: »

Thank you I will check them out. Just wondering are you allowed to join the trade union after an incident? or do you have to be an existing member to have them represent you?

A union will not look favourably on blowins.

Frankly in this day and age unions are only useful in certain industries, the rest of us can simply fall back on private legal representation. Some union reps are excellent, unfortunately some are useless. If you get a negligent solicitor you have recourse through the Law Society.

fairycakes · 02-08-2015 10:44pm

The company has stated that I have a right to have a representative present or a work colleague they never stipulated who the representative has to be.

Stheno · 02-08-2015 10:47pm

fairycakes wrote: »

The company has stated that I have a right to have a representative present or a work colleague they never stipulated who the representative has to be.

Given you've no union in the company it will be a colleague that will be accepted as the de facto rep.

A union rep or a legal rep will be denied access most likely

MarkAnthony · 02-08-2015 10:50pm

fairycakes wrote: »

The company has stated that I have a right to have a representative present or a work colleague they never stipulated who the representative has to be.

If it's gross misconduct then there is case law to suggest a solicitor can be your representative; furthermore they can engage with the hearing and conduct cross examinations for you etc. It's a colossal waste of money though in 99% of cases. Your best bet is to have a friend that's good at taking notes and it willing to give evidence at tribunal if needed. Well worth covertly recording the meeting if you're sure you won't get caught. Even better if your rep isn't employed by the company get them to do it.

Having a solicitor present will only put manners on the employer and make them careful. Let them feel secure and cock-up. Plays right into your hands.

Standard trick when a solicitor pitches up is to apologise profusely and reschedule the meeting due to unforeseen circumstances. The solicitor still bills you and it stresses you out even more.

snoopy12 · 02-08-2015 10:50pm

Stheno wrote: »

Usually you need to be an existing member, and your company have to acknowledge the union. Companies do not have to compulsorily liaise with trade unions.

I stand corrected but i think that regardless of whether the company recognises a union you are entitled to have a union rep present at disciplinary meetings. Certainly more favourable than bringing a colleague. Employees also have these option of becoming confidential union members to draw on the union as necessary. Depending on the union most relevant to your industry they may work with you if you sign up immediately. This is at their discretion as there can be a defined period before you can use them eg 4 weeks, iykwim.

A quick Google threw out the link below which briefly surmises your rights:

http://www.unionconnect.ie/rights/1discipline/

Best of luck.

fairycakes · 02-08-2015 10:52pm

sorry as you can see I have no clue about law, why would they be denied access? They are a private company.

Hachiko · 02-08-2015 10:53pm

fairycakes wrote: »

Hi all I badly need some expert advice. I am called into a disciplinary meeting with my work. I have basically been shafted by other workmates and now management are basically saying i have done a gross misconduct and have said i can have a work colleague or someone else in the meeting with me as a representative. I am the kind of person that could easily get swallowed up here as I am sensitive and really hate any sort of conflict!! (the work colleagues knew who to pick on!!). I wanted to ask is there anywhere i can get free legal advice and if they can come with me to the meeting? I haven't much money so I don't know what to do any help with this would be much appreciated!.

Also can anybody tell me with regards annually leave if you work them and get extra money for working on the day are you also entitled to extra annually leave hours?? and if a company dismisses you are you still in entitled to all your annual leave? thanks!!

a company should give you a contract, which outlines disciplinary action steps etc. You usually get some informal notification first, followed by more formal steps such as a letter of sorts.

what you describe is pretty much the step that leads to dismissal, have you a record of actions that led to this happening, if you are getting shafted or bullied by anyone ,clearly that is a no. You need to see some legal advice.

If you have a valid case and if the company are in the wrong I would see a solicitor. Doesn't sound like anyone at work is worth brining to this meeting.

Don't sign anything at this meeting until you know where you stand.

Stheno · 02-08-2015 10:55pm

snoopy12 wrote: »

I stand corrected but i think that regardless of whether the company recognises a union you are entitled to have a union rep present at disciplinary meetings. Certainly more favourable than bringing a colleague. Employees also have these option of becoming confidential union members to draw on the union as necessary. Depending on the union most relevant to your industry they may work with you if you sign up immediately. This is at their discretion as there can be a defined period before you can use them eg 4 weeks, iykwim.

A quick Google threw out the link below which briefly surmises your rights:

http://www.unionconnect.ie/rights/1discipline/

Best of luck.

From a similiar google search

There is no legal obligation on an employer to negotiate with a union on behalf of an employee member, unless previously agreed. This does not prevent a dispute about trade union recognition from being a lawful disput

http://www.citizensinformation.ie/en/employment/employment_rights_and_conditions/industrial_relations_and_trade_unions/trade_unions.html

Nothing there about gross misconduct being an exception, and certainly in the many non unionised workplaces I have worked in, unions were never allowed into the company, same with legal representatives even in terms of gross misconduct. The threat of legal representation in one case I personally had however, served as a deterrent. It wasn't gross misconduct.

Op should seek professional advice.

MarkAnthony · 02-08-2015 10:56pm

fairycakes wrote: »

sorry as you can see I have no clue about law, why would they be denied access? They are a private company.

There is case law to suggest that they are allowed in, no definitive right (well actually there probably is but I digress). Companies balls-up disciplinary procedures all the time, they'll do all sorts of things incorrectly including denying a solicitor access.

As said though, not worth taking one anyway.

fairycakes · 02-08-2015 10:58pm

I think the union would be IMPACT so might just give them a call and see what they say. Awful to be treated so badly and feel like have no support whatsoever especially if you are the kind of person that doesn't like to argue over things!

snoopy12 · 02-08-2015 10:58pm

Stheno wrote: »

From a similiar google search

There is no legal obligation on an employer to negotiate with a union on behalf of an employee member, unless previously agreed. This does not prevent a dispute about trade union recognition from being a lawful disput

http://www.citizensinformation.ie/en/employment/employment_rights_and_conditions/industrial_relations_and_trade_unions/trade_unions.html

Nothing there about gross misconduct being an exception, and certainly in the many non unionised workplaces I have worked in, unions were never allowed into the company, same with legal representatives even in terms of gross misconduct. The threat of legal representation in one case I personally had however, served as a deterrent. It wasn't gross misconduct.

Op should seek professional advice.

I certainly agree re professional advice. Thanks for the info above Stheno.

MarkAnthony · 02-08-2015 11:03pm

Stheno wrote: »

Nothing there about gross misconduct being an exception, and certainly in the many non unionised workplaces I have worked in, unions were never allowed into the company, same with legal representatives even in terms of gross misconduct. The threat of legal representation in one case I personally had however, served as a deterrent. It wasn't gross misconduct.

Op should seek professional advice.

Where the employee is on notice that the hearing may lead to dismissal (which they must be id the hearing can lead to dismissal) the rules change. So while not strictly a gross misconduct situation - gross misconduct almost always carries with it the threat of dismissal.

The rights stem from a constitutional right to justice and fairness, including representation. However it depends (rather unfairly) on the job. The suggestion is one can be a professional prison guard but not a professional cleaner or shop worker. Very interesting and quite snobby area of law IMHO. Sorry for the digression.

Last time I'll say it - not point in taking a solicitor to a hearing anyway in the vast majority of cases. Having one on the end of the phone though is quite different and most entertaining in some cases.

Stheno · 02-08-2015 11:04pm

snoopy12 wrote: »

I certainly agree re professional advice. Thanks for the info above Stheno.

No problem at all, people often think that unions have far greater powers than they have. The most famous case was Ryanair winning the right not to recognise unions whatsoever in the Supreme Court.

You can try as an individual to have a union represent you, but the company can refuse to deal with them.

It's still an area that isn't black and white in law, but currently sides with the employer.

I've personally worked in three environments where individual attempts to involve unions failed, but using legal representation worked. One case was myself directly (i didn't bother with the union, but invoked foi law) the other two involved trying both unions and lawyers. None however were for cases of gross misconduct, which ime directly supports employers for the most part. The burden of guilt is on the employee

mickmackmcgoo · 02-08-2015 11:19pm

Op bring someone with you that you trust. Get them to take notes etc at this meeting. Show them that you are prepared and stay calm and confident. Don't go throwing accusations just stick to the facts of what happened etc

Stheno · 02-08-2015 11:38pm

MarkAnthony wrote: »

Where the employee is on notice that the hearing may lead to dismissal (which they must be id the hearing can lead to dismissal) the rules change. So while not strictly a gross misconduct situation - gross misconduct almost always carries with it the threat of dismissal.

The rights stem from a constitutional right to justice and fairness, including representation. However it depends (rather unfairly) on the job. The suggestion is one can be a professional prison guard but not a professional cleaner or shop worker. Very interesting and quite snobby area of law IMHO. Sorry for the digression.

Last time I'll say it - not point in taking a solicitor to a hearing anyway in the vast majority of cases. Having one on the end of the phone though is quite different and most entertaining in some cases.

The one personal case I had well over ten years ago was due to my suffering from a protracted illness.

I attended the company doctor who agreed I was too unwell to work, but the company initiated proceedings to dismiss me due to the protracted illness.

I sought legal advice, and initiated a freedom of information request on all of my records, which appeared to frighten the company enough that they dropped all proceedings.

Too many times I think companies think employees are too afraid to take action.

Mrs OBumble · 03-08-2015 11:29am

fairycakes wrote: »

I think the union would be IMPACT so might just give them a call and see what they say. Awful to be treated so badly and feel like have no support whatsoever especially if you are the kind of person that doesn't like to argue over things!

OP, it's worth a go.

But remember that if it's your colleagues who have shafted you already, then those same colleagues may well be union members. And the union will have to represent the majority of it's member, ie support the colleagues not you.

There's a lot of spatting here about whether you're allowed to have a lawyer or not. Don't listen to it: if your company have said "a colleague or someone" then that someone can be anyone - a solicitor, a friend, a union organiser etc. But it may get expensive, especially if the company pulls tricks.

As stated, it may be better to have a friend who's an excellent note-taker and have some idea about meeting procedure.

If you're presented with anything to sign, don't do it there. Say you will take it away and get back to them.

Nody · 03-08-2015 11:46am

Mrs OBumble wrote: »

If you're presented with anything to sign, don't do it there. Say you will take it away and get back to them.

But if the company has any cop on they will simply read it out loud to you and have two witnesses sign it stating you have been read the content but refused to sign it.

On the other hand if they do have something prepared to sign they could set themselves up for a procedural mistake (deciding the outcome of the meeting in advance rather than have a fact gathering and clarifying meeting and then based on the facts presented take a decision).

Hachiko · 03-08-2015 3:04pm

Nody wrote: »

But if the company has any cop on they will simply read it out loud to you and have two witnesses sign it stating you have been read the content but refused to sign it.

On the other hand if they do have something prepared to sign they could set themselves up for a procedural mistake (deciding the outcome of the meeting in advance rather than have a fact gathering and clarifying meeting and then based on the facts presented take a decision).

Depends on what stage the OP is at with the disciplinary process, a meeting such as this usually comes towards the end and at a stage when a company is looking to terminate a contract.

fairycakes · 04-08-2015 10:36am

Does anybody know if you have handed in your notice do you still have to attend this meeting? and can you get fired if you have already handed in your notice ( I am basically working my notice out at present-2 weeks) thanks guys for your help.

Avatar MIA · 04-08-2015 10:48am

How long are you with the company and how much notice of the disciplinary meeting did they give you?

Is what you are accused of considered Gross misconduct?

MarkAnthony · 04-08-2015 10:49am

fairycakes wrote: »

Does anybody know if you have handed in your notice do you still have to attend this meeting? and can you get fired if you have already handed in your notice ( I am basically working my notice out at present-2 weeks) thanks guys for your help.

Come to an agreement with the employer. Usually you negotiate a good reference, a payment and the process being dropped in exchange for notice. Speak to your solicitor.

fairycakes · 04-08-2015 10:59am

Hi Avatar with this crowd seven months. I got notice 5 days ago re meeting and handed in my notice 4 days ago. No in my opinion its not gross misconduct as its all hearsay (if that makes sense).

Avatar MIA · 04-08-2015 11:05am

fairycakes wrote: »

Hi Avatar with this crowd seven months. I got notice 5 days ago re meeting and handed in my notice 4 days ago. No in my opinion its not gross misconduct as its all hearsay (if that makes sense).

Hi, that you're there less than a year is significant as it's effectively a year long probation period regardless of what the official probation period.

As far as I'm aware you need to be given sufficient time to prepare for a disciplinary meeting. I thought this was at least 2 weeks.

However, as mentioned above, being within one year of employment is a weak position to be in.

It's a pity you feel the need to resign.

fairycakes · 04-08-2015 11:11am

I already had a job lined up so I was always going to be leaving in the next month. I am so disgusted with how I have been treated that I couldn't work for them any longer :mad:

Avatar MIA · 04-08-2015 11:14am

fairycakes wrote: »

I already had a job lined up so I was always going to be leaving in the next month.

Ah that's good news. You're entitled to be paid for untaken annual leave. This is the only time the company is allowed to pay you for AL.

fairycakes · 04-08-2015 11:21am

So i am entitled to all my leave? regardless if they fire me?? As i haven't taking any at all since i started. Also if they don't give me all my annually leave can i report them to the tax office? thanks Avatar x

Avatar MIA · 04-08-2015 11:28am

fairycakes wrote: »

So i am entitled to all my leave? regardless if they fire me?? As i haven't taking any at all since i started. Also if they don't give me all my annually leave can i report them to the tax office? thanks Avatar x

They have to pay you your salary and for the AL untaken, which works out at 1.67 days per month if you are on statutory 20 days AL. If you were with them 7 months and have not taken AL you'd be entitled to approx 11.7 days extra pay.

They cannot deduct from this unless you agree and sign to deductions.

Hypothetically, if a person were accused of stealing €100 worth of stock, the company cannot deduct this from pay. They would need to instigate separate legal proceedings.

There is one exception I can think of, say a person took one days sick leave in the seven months and the company paid for this at the time, it's possible they MAY be able to claw this back as AL.

fairycakes · 04-08-2015 11:30am

Brilliant they are the type of company that will try and pull a fast one!!

Avatar MIA · 04-08-2015 11:32am

Sorry, should add. IF they didn't pay you your annual leave it wouldn't be the tax office you'd report them to, but NERA 3ws.workplacerelations.ie/ (can't post full links)

However, it would be rare a company would be silly enough not to pay statutory rights.

Mrs OBumble · 04-08-2015 11:41am

fairycakes wrote: »

Does anybody know if you have handed in your notice do you still have to attend this meeting? and can you get fired if you have already handed in your notice ( I am basically working my notice out at present-2 weeks) thanks guys for your help.

Go anyway - to find out exactly what they're going to say about you. Your aim is simply to leave with your reputation no more damaged than it needs to be.

And it's worth going just for the experience, so you know what these sort of meetings are like if you ever have to go into one again.

If they do fire you now, an employment solicitor might be able to help you get some cash out of the, because it's likely they'll make a procedural b*** up of it. But it may or may not be worth the stress.

RainyDay · 04-08-2015 1:03pm

fairycakes wrote: »

Thank you I will check them out. Just wondering are you allowed to join the trade union after an incident? or do you have to be an existing member to have them represent you?

No disrespect, but it's a bit like asking if you can wait until AFTER the car crash to buy car insurance. As a union member, I hope that unions don't operate like this.

Stheno wrote: »

No problem at all, people often think that unions have far greater powers than they have. The most famous case was Ryanair winning the right not to recognise unions whatsoever in the Supreme Court.

You can try as an individual to have a union represent you, but the company can refuse to deal with them.

It's still an area that isn't black and white in law, but currently sides with the employer.

Not true, the law changed a few weeks ago. Employees now have a full legal right to be represented by their union. regardless of whether management want to negotiate or not.

Mrs OBumble wrote: »

But remember that if it's your colleagues who have shafted you already, then those same colleagues may well be union members. And the union will have to represent the majority of it's member, ie support the colleagues not you.

You're right to flag this issue, but it is not as black and white as you suggest. Your support in an issue like this will be your union official, not your fellow members. While there may well be a relationship between the two that could complicate things a bit, it is not a case of 'having to represent the majority'. Union officials are trained in ethical representation - to do the right thing.

LegacyUser · 04-08-2015 1:56pm

fairycakes wrote: »

I think the union would be IMPACT so might just give them a call and see what they say. Awful to be treated so badly and feel like have no support whatsoever especially if you are the kind of person that doesn't like to argue over things!

Impact are a public sector union. They don't operate in the private sector. Contact Siptu or Unite.

Mrs OBumble · 04-08-2015 3:03pm

RainyDay wrote: »

You're right to flag this issue, but it is not as black and white as you suggest. Your support in an issue like this will be your union official, not your fellow members. While there may well be a relationship between the two that could complicate things a bit, it is not a case of 'having to represent the majority'. Union officials are trained in ethical representation - to do the right thing.

Yes and no.

Union officials salaries are paid by members. Unions have no power at all, unless their members are willing to take industrial action in support of the union position.

So there have been plenty of cases where a union has represented its members wishes, but this has been to the detriment of individual workers whose interests have been different from the majority.

3DataModem · 04-08-2015 3:26pm

If you are resigning I strongly advise not attending the disciplinary meeting. Find an excuse not to make it. They can have it without you, but you don't want a hearing like that on file.

RainyDay · 04-08-2015 7:04pm

Mrs OBumble wrote: »

Yes and no.

Union officials salaries are paid by members. Unions have no power at all, unless their members are willing to take industrial action in support of the union position.

So there have been plenty of cases where a union has represented its members wishes, but this has been to the detriment of individual workers whose interests have been different from the majority.

Yes and No! You're right in what you, but the impact of this depends very on the nature of the individual's dispute or concern. In most cases, the individual dispute or grievance or disciplinary will not be relating to an issue that the local union branch has taken a formal position on. Therefore the union official will be well able to support the individual member. They will probably point out that it is your dispute, not their the union's dispute - and their role is to support the member rather than to negotiate the solution.

3DataModem wrote: »

If you are resigning I strongly advise not attending the disciplinary meeting. Find an excuse not to make it. They can have it without you, but you don't want a hearing like that on file.

Yes and No! My first thought was in agreement with you - to get out asap with as little pain as possible. But the meeting could also be an opportunity to address the issue, clear the air, clear your record and leave on good terms. It all depends on the nature of the dispute.

Hachiko · 04-08-2015 7:29pm

seems like a brutal place, good job you got out. Having a job lined up is the best result you could have wished for.

the_syco · 04-08-2015 8:18pm

RainyDay wrote: »

Yes and No! My first thought was in agreement with you - to get out asap with as little pain as possible. But the meeting could also be an opportunity to address the issue, clear the air, clear your record and leave on good terms. It all depends on the nature of the dispute.

I agree with 3DataModem; best to leave on your own terms, than leave after a gross misconduct hearing. Also, if asked, the employer would be truthful in saying that the OP left the company after a meeting about gross misconduct, if they did attend.

Hachiko · 04-08-2015 8:26pm

yeah if you have a job lined up and deep down you want them all to rot in the deepest of hell, its best to leave in good terms. When you exit the place and are within 20 yards of the building it is within your rights to yell-

*** you all, a$$ holes.

and go get a pint and move on swiftly and upwards.

jimmycrackcorm · 04-08-2015 8:40pm

fairycakes wrote:

Hi Avatar with this crowd seven months. I got notice 5 days ago re meeting and handed in my notice 4 days ago. No in my opinion its not gross misconduct as its all hearsay (if that makes sense).

You should have someone with you if only to make notes and make sure that you have recorded that it is hearsay.

Despite your notice, don't give then the satisfaction of trying to pin gross misconduct on something that can't be proven. But just in case they do you can have the satisfaction of a Labour court case for something that can't be proved.

delthedriver · 04-08-2015 9:54pm

Op, you need to engage the services of an employment law specialist.

It is important that you leave on good terms , with a good reference and your reputation intact.

fairycakes · 05-08-2015 10:56pm

Guys they are saying i can only take a co worker or union rep with me to this meeting - so now changed from a representative to co worker or union rep (funny it was after i mentioned solicitor)!! I am not in a union and don't want any co worker with me. I am going to a solicitor who are specialists in employment law!!:(

Stheno · 05-08-2015 11:03pm

fairycakes wrote: »

Guys they are saying i can only take a co worker or union rep with me to this meeting - so now changed from a representative to co worker or union rep (funny it was after i mentioned solicitor)!! I am not in a union and don't want any co worker with me. I am going to a solicitor who are specialists in employment law!!:(

They don't have to let you take just anyone, they can specify.

You were told earlier in the thread that it would be unlikely you can have a legal rep with you!

Legal advice employer issue-so stressed out!!!

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