unfair verbal warning?

Procrastastudy

The Mustard wrote: »

At an early stage of a disciplinary process, it may or may not be overly confrontational to bring a solicitor to represent one's interests. In many cases, it's a bit OTT. However, if people choose to bring a solicitor to a disciplinary hearing, then they will. If people want to being union representation, then they will.

A solicitor is not going to attend a disciplinary hearing as a witness. He may be silent and take notes, but he is there to represent his client. He may have questions for witness to an incident forming the subject of a complaint.

I haven't come across a situation of a solicitor being excluded from attending a disciplinary hearing, but if it were to happen, then lack of fair procedures would be argued should matters proceed to the EAT.

EDIT: There is a possibility of judicial review proceedings being brought against a management decision to exclude an employee's solicitor from a disciplinary hearing.

I hate to argue with you, given you usually put me right over in LD but I'm pretty sure you're wrong on the solicitor point; Re Haughey, O'Brien v PIAB, HM Prisons case ex p Tarrent (forget the proper name) and various cases involving prison officers in Ireland spring to mind. I'm open to correction. While there isn't an exclusion of solicitors its rare that not having one is grounds for unfair dismissal.

As for judicial review - are you sure the decision of a private employer is subject to judicial review? Surely thats what EAT is there for?

Pat Mustard

Procrastastudy wrote: »

I hate to argue with you, given you usually put me right over in LD but I'm pretty sure you're wrong on the solicitor point; Re Haughey, O'Brien v PIAB, HM Prisons case ex p Tarrent (forget the proper name) and various cases involving prison officers in Ireland spring to mind. I'm open to correction. While there isn't an exclusion of solicitors its rare that not having one is grounds for unfair dismissal.

Ah, me aul sparring partner!

I wasn't certain of this point, and there isn't a single employment law book to hand right now.

I'll have to concede the point if I can't come back to you on it!

I will say that solicitors do attend disciplinary hearings.

Procrastastudy wrote: »

As for judicial review - are you sure the decision of a private employer is subject to judicial review? Surely thats what EAT is there for?

I'm not certain of the JR point. But a decision affecting right to legal representation would be worth checking, if it were to arise.

Where's ResearchWill when you need him!?

Procrastastudy

To be fair - I'm not saying they don't attend - or that under certain circumstances there isn't a right, I just think it's very situational. This type of thing wouldn't be something I could see the OP having a right to have one present. All that said I'm not trying to detract from your advice to the OP which has been, in my opinion, spot on.

weisses

adelec wrote: »

The first time my manager asked me to stay on an extra half hour but i didnt have a babysitter so he told me let him sit next to me

Says it all

So he should be subject to a disciplinary hearing

adelec

weisses wrote: »

Says it all

So he should be subject to a disciplinary hearing

Basing on what you have qouted me sayin, is your point that i should be disciplined with a warning? Its just the point i was making, as i said before, is that where was the h&s rule when i had my child the day of the face painting.im just abit confused with your reply regarding my qoute

adelec

The Mustard wrote: »

Ah, me aul sparring partner!

I wasn't certain of this point, and there isn't a single employment law book to hand right now.

I'll have to concede the point if I can't come back to you on it!

I will say that solicitors do attend disciplinary hearings.




I'm not certain of the JR point. But a decision affecting right to legal representation would be worth checking, if it were to arise.

Where's ResearchWill when you need him!?

As regarding solicitors i really wouldnt want to go that far.as i have said numerous times i have been stressed about this situation enough and i definitely dont want things to get that far to be honest my manager and i have been very 'grown up' and calm in our meetings so hopefully we can come to an agreement between us.the outcome of todays meeting was................another meeting Monday!

wardy2

adelec wrote: »

I was called into the Managers office today and was told i am under investigation over an incident that happened afew dats ago.the 'incident' that occured is my 3year old son came into the shop with my mother to buy afew things.of course when my son saw me he ran to my checkout and jumpd up on the seat behind me.i tried numerous times to get him off but when he got upset i left him there until my mother returned 5mins later.now i have been informed i Will be called for a meeting tomorrow which Will lead to a warning.i really dont think this is fair as my son is only 3 and doesnt know he was doing wrong.has my Manager the right to give me an official warning???

you can refuse the warning and appealed it against his manager

adelec

Little Ted wrote: »

Its the word 'rep' I think which confuses people - the whole 'represet' concept. But from legal advice we have been given, along with advice seminars from employer and business organisations I have attended, the advice was always that at those stages do not allow a witness to railroad the procedings by speaking on behalf of the staff member, nor allow them to 'object' etc. As you say, a recess is a good compromise if it is needed or requested by the staff member.

I suppose that if your union rep is doing what they should before you ever get into the room they should be advising you on how to handle the situation, what approach to take. But equally, the investigation process is that - not an interrogation process to intimidate or scare an employee. So if the management is performing these investigations correctly, then there should be no need for a union rep or any other witness to be jumping in anyway.
(Unless s/he has a lifelong dream of having a Tom Cruise 'you can't handle the truth' moment! :P )

Little ted, you are honestly the person i wanted to update on the situation because a)you asked that i keep you posted and b) you have been cruel and been kind and,like i said before, im greatful for your opinion and i take your advice on board.
but (because i like my 'buts' lol) todays meeting led to.....(drumroll please) another meeting Monday! I feel now like im been taken for a ride

adelec

wardy2 wrote: »

you can refuse the warning and appealed it against his manager

I am back Monday for meeting number five.im worn from it and i think that was his intention.after so long the fire dies and i feel thats whats happening me.now a verbal warning doesnt seem so bad....i just want it over and done with on the brightside my union rep has seen me backing down slowly but surely so he has decided hes actually going to speak!now hes fighting my battle whereas i have had enough theres really only so much meetings a person can take!!

davo10

adelec wrote: »

Basing on what you have qouted me sayin, is your point that i should be disciplined with a warning? Its just the point i was making, as i said before, is that where was the h&s rule when i had my child the day of the face painting.im just abit confused with your reply regarding my qoute

I do not think the face painting is relevant to your current situation. On that day you were assigned to that task and it was in a certain part of the store, also your employer would accept responsibility for whatever may happen. When your current situation arose, you were supposed to be working at your till, the child was not supposed to be in that area, the child created a scene probably in front of customers, it went on for a relatively long time, your employer was not aware the child would be there and would not accept responsibility for any H&S issues unlike the painting day.

I do not wish to cause upset and I am certainly not trolling but I think this is a real problem for businesses today. The OP describes a situation, and I think it is a real situation, where she is clearly at fault and in my opinion deserving of the fairly minor verbal warning. But now we have union reps, meetings about meetings, advice not to accept the warning, advice to fight it, appeal it, complain about the manager, the manager is a bully, the manager caused someone else to leave, he's a boy trying to be a man etc etc etc. This is a big problem for businesses today, even when someone is in the wrong and know they are, there is no acceptance of responsibility which then drags everything out for everyone.

By the way, I would also take the view that by having these meetings, the manager is making certain that everything is being done to the letter of the law and by not accepting the verbal warning from the off, this may now be a bigger issue. I cannot imagine them having so many meetings just for a minor warning, I suspect more investigations are ongoing and that if this is a corporate store, they are waiting for head office to make a decision, if not, the owner is probably being consulted

weisses

adelec wrote: »

Basing on what you have qouted me sayin, is your point that i should be disciplined with a warning? Its just the point i was making, as i said before, is that where was the h&s rule when i had my child the day of the face painting.im just abit confused with your reply regarding my qoute

No not at all ... If i understand you correctly It was okay that your child sat next to you when doing overtime ... Because that suited him .. And now you are getting a warning because it suited you

Im on your side 100% ... sorry for the confusion

gozunda

adelec wrote: »

Little ted, you are honestly the person i wanted to update on the situation because a)you asked that i keep you posted and b) you have been cruel and been kind and,like i said before, im greatful for your opinion and i take your advice on board.
but (because i like my 'buts' lol) todays meeting led to.....(drumroll please) another meeting Monday! I feel now like im been taken for a ride

Adelec

Some words of caution here. There would appear to be similar to an IBEC (ie business interest) type school of approach in reply to many employee situations where employee interests would better be catered for in a more impartial capacity especially in the absence of proper representation for the employee. I am genuinely wary about abscribing supposed solutions to issues that directly effect employees especially where the balance of power lies with managerial and ultimately company interests. Micromanagement to the level of at least 5 meetings over what appears to have been a once off issue without previous form appears at least to be an exercise that amounts to managerial bullying. I would recommend you do take representation with you to all subsequent meetings and that you clearly document everything that has been said and done to date. This is in your own interest. Unfortunately it remains a sad fact that various overt and dominant employer interests now advocat such practices in recent years in order to keep employees more or less powerless in the face of unfair and sometimes even discriminatory practices.

Mrs OBumble

Troll food deleted.

And a reminder to all posters to try keep the tone of your posts non-legalistic.

This forum is for discussion and practical advice. Legal advice comes from lawyers, and isn't given here, so please don't try to present your practical advice as anything more than it is.

tatli_lokma

adelec wrote: »

Little ted, you are honestly the person i wanted to update on the situation because a)you asked that i keep you posted and b) you have been cruel and been kind and,like i said before, im greatful for your opinion and i take your advice on board.
but (because i like my 'buts' lol) todays meeting led to.....(drumroll please) another meeting Monday! I feel now like im been taken for a ride

what was discussed at the meeting on Saturday and what reason was given for having another meeting today? was your union rep there and did he raise any objections or make any recommendations? is this perhaps why the manager needs to have another meeting (to address the issues the rep raised)?

Pat Mustard

Mod point noted, no legal advice will be given, just a quick response to earlier challenge.

Procrastastudy wrote: »

I hate to argue with you, given you usually put me right over in LD but I'm pretty sure you're wrong on the solicitor point; Re Haughey, O'Brien v PIAB, HM Prisons case ex p Tarrent (forget the proper name) and various cases involving prison officers in Ireland spring to mind. I'm open to correction. While there isn't an exclusion of solicitors its rare that not having one is grounds for unfair dismissal.

At para 41, this case says:

In the absence of the Plaintiff and his legal representative, the hearing was not a fair hearing

Some discussion here.

davo10 wrote: »

I think it is a real situation, where she is clearly at fault and in my opinion deserving of the fairly minor verbal warning.

Although you might be correct, on the other hand, you might not. You don't have all of the information. You are making an assumption.

I think that this is a dangerous assumption to make. You are talking about someone's livelihood here.

Nobody on this thread can know whether the OP's behaviour merited a warning or not. They haven't met the OP to take all of the relevant details, nor have they gone through the OP's paperwork.

A warning is a step in the disciplinary process. The disciplinary process can lead to dismissal. Therefore, a warning is not a minor matter to the OP, nor would it be to anyone else in similar circumstances. Therefore, although people's assumptions may be well intended, they are not good enough in the circumstances.

Procrastastudy

I'm not sure that establishes a right to legal representation, just that it can and does occur.

Pat Mustard

Procrastastudy wrote: »

I'm not sure that establishes a right to legal representation, just that it can and does occur.

From the Bar Review article that I linked (discussing the Maher case):

The employer had got it wrong in failing to furnish the plaintiff with copies of the statements made by his accusers in advance of an oral hearing, in failing to inform the plaintiff in reasonable time that he was entitled to be legally represented at the hearing and in going ahead with the hearing in the absence of the plaintiff who had declined to attend. In those circumstances, Laffoy J. held that the hearing could not be considered fair and that the decision taken at the meeting to terminate the plaintiff's employment could have no effect.

The Supreme Court case of Georgolopoulos v Beaumont Hospital (4th June 1997) stated at page 149:

The obligation on the defendant was to conduct the hearing before it in accordance with fair procedures. Such procedures involved the defendant in

(i) giving to the plaintiff full particulars and notice of the complaints made against him;
(ii) giving to the plaintiff the opportunity to hear the evidence in support of such complaints, to test such evidence in cross-examination by counsel on his behalf and the opportunity to give or call evidence on his behalf.

Procrastastudy

The Mustard wrote: »

From the Bar Review article that I linked (discussing the Maher case):


The Supreme Court case of Georgolopoulos v Beaumont Hospital (4th June 1997) stated at page 149:

I think we'd be better taking this to LS. The situation is that one size does not fit all in relation to constitutional justice (and illuded to in Maher). The case on point being Flanegan v UCD - that one size does not fit all in relation to constitutional justice. (Para 19)

Would Beaumont not be in relation to the public service?

If Mustard is willing perhaps a mod might be willing to split this off and pop it in the Legal Discussions forum please?

@Mustard - very much obliged for the links and conversation on the matter.

davo10

The Mustard wrote: »

Although you might be correct, on the other hand, you might not. You don't have all of the information. You are making an assumption.

I think that this is a dangerous assumption to make. You are talking about someone's livelihood here

You'll have to go back and read the thread. OP described the sequence of events which occurred, the grandmother,the fact it was during working hours, the fact that she could not carry out her duties, the child on high chair behind the till, the tantrum, the fact that she did not remove the child etc.
OP concedes she was in the wrong, this is not an assumption.

What the OP disputes is whether it deserves a verbal warning, based only on the info supplied by the OP and experience of work practices in their place of employment, it is the opinion of the majority of posters that she is deserving of a verbal warning. That is opinion not assumption.

Furthermore, it would seem that the manager has been very fair. He advised OP of the meeting, advised her to being representation, asked for her side of the story, investigated the situation, heard the OPs objection to the warning, is now considering all the facts and will inform her of his/the company's decision. Yes this involved a lot if meetings but rather as one deluded poster stated this is bullying, In my opinion this is being considerate and thorough, not making a snap decision. The manager appears not to be making assumptions either.

Pat Mustard

davo10 wrote: »

You'll have to go back and read the thread. OP described the sequence of events which occurred, the grandmother,the fact it was during working hours, the fact that she could not carry out her duties, the child on high chair behind the till, the tantrum, the fact that she did not remove the child etc.
OP concedes she was in the wrong, this is not an assumption.

What the OP disputes is whether it deserves a verbal warning, based only on the info supplied by the OP and experience of work practices in their place of employment, it is the opinion of the majority of posters that she is deserving of a verbal warning. That is opinion not assumption.

Furthermore, it would seem that the manager has been very fair. He advised OP of the meeting, advised her to being representation, asked for her side of the story, investigated the situation, heard the OPs objection to the warning, is now considering all the facts and will inform her of his/the company's decision. Yes this involved a lot if meetings but rather as one deluded poster stated this is bullying, In my opinion this is being considerate and thorough, not making a snap decision. The manager appears not to be making assumptions either.

Thank you davo10.

I read the thread in its entirety.

It is extremely important to note that the charge against the OP has not been specified. Therefore, it is impossible to offer a reliable opinion on whether her actions deserve a warning.

Several posters have offered their opinions on whether the warning was deserved. However, if they do not know the charge, then their opinion and their advice is on the basis of assumption.

Assumption is an unreliable basis for advice.




@Procrastastudy, if you stick up a thread on Legal Discussion, I'll follow you over there this evening.

Mrs OBumble

The Mustard wrote: »

@Procrastastudy, if you stick up a thread on Legal Discussion, I'll follow you over there this evening.

Phew .. I wasn't looking forward figuring out how to split off some posts into a thread that somehow made sense!

IMHO Far better if you take up the legal discussion elsewhere, and leave this thread for practical advice.

Procrastastudy

Mrs OBumble wrote: »

IMHO Far better if you take up the legal discussion elsewhere, and leave this thread for practical advice.

Walk in to the meeting and thump the guy in the head. It'll get you fired but you'll feel better. My practical advise for the day :P

Dyr

davo10 wrote: »

You'll have to go back and read the thread. OP described the sequence of events which occurred, the grandmother,the fact it was during working hours, the fact that she could not carry out her duties, the child on high chair behind the till, the tantrum, the fact that she did not remove the child etc.
OP concedes she was in the wrong, this is not an assumption.

The assumption is that this person to carry out their duties. Had the child not been related to the employee would she be facing disciplinary action for its behavior?

tatli_lokma

Bambi wrote: »

The assumption is that this person to carry out their duties. Had the child not been related to the employee would she be facing disciplinary action for its behavior?

one would hope so - worse breach IMO to allow another person's child to place themselves in potential danger and/or allow admission to a restricted area. Bad enough that it's your own. common sense would dictate that if it was another persons child you would advise the parent to remove the child from the area in question.

Dyr

Little Ted wrote: »

common sense would dictate that if it was another persons child you would advise the parent to remove the child from the area in question.

Which she did it seems

allow admission to a restricted area

The restricted area that this child had access to without any intervention from the employee?

tatli_lokma

Bambi wrote: »

Which she did it seems

no she didn't - by her own admission she tried to get him to leave but he kicked up a fuss so she kept him there til her mum was finished shopping.

Bambi wrote: »

The restricted area that this child had access to without any intervention from the employee?

I don't know what you're getting at??

adelec

Little Ted wrote: »

what was discussed at the meeting on Saturday and what reason was given for having another meeting today? was your union rep there and did he raise any objections or make any recommendations? is this perhaps why the manager needs to have another meeting (to address the issues the rep raised)?

I didn't have my meeting Monday.I went in at one o clock, like had been arranged, to find out my manager is on holidays for a week and forgot to mention this.he did in fact come to work on Monday though but left before I arrived.......

adelec

Procrastastudy wrote: »

Walk in to the meeting and thump the guy in the head. It'll get you fired but you'll feel better. My practical advise for the day :P

That would definitely relieve some tension but not so sure it would help the situation lol

Hilly Bill

It doesnt add up in my opinion. If it was the first time it happened then surely a quite word from the manager for it not to happen again would have been good enough. I cant see the reason for all the meetings unless there is more to it than what we are being told. A verbal warning is just a call into the office and a warning as not to do it again, its no big deal. There is no reason for the call to all the meetings based on what the OP has given on here. I think the thread title is misleading, the verbal warning sounds fair enough to me.

Sir Oxman

Hilly Bill wrote: »

It doesnt add up in my opinion. If it was the first time it happened then surely a quite word from the manager for it not to happen again would have been good enough. I cant see the reason for all the meetings unless there is more to it than what we are being told. A verbal warning is just a call into the office and a warning as not to do it again, its no big deal. There is no reason for the call to all the meetings based on what the OP has given on here. I think the thread title is misleading, the verbal warning sounds fair enough to me.

A manager who knows what he/she's doing would do it that way alas Ireland is awash with incompetent middle management in absolutely every sphere.