Punished twice for the same offence

Stheno

Snakeweasel wrote: »

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

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

Snakeweasel

Stheno wrote: »

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

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

davo10

Snakeweasel wrote: »

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

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

Snakeweasel

davo10 wrote: »

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

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

davo10

Snakeweasel wrote: »

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

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

Bandana boy

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

Snakeweasel

davo10 wrote: »

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

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

amdublin

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

Snakeweasel

Bandana boy wrote: »

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

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

davo10

Snakeweasel wrote: »

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

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

Snakeweasel

amdublin wrote: »

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

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

easygoing1982

Snakeweasel wrote: »

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

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

sonny.knowles

Snakeweasel wrote: »

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

Freeman stuff?

Snakeweasel

davo10 wrote: »

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

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

amdublin

Snakeweasel wrote: »

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

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

Bandana boy

Snakeweasel wrote: »

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

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

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

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

MarkAnthony

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

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

petes

Snakeweasel wrote: »

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

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

Snakeweasel

petes wrote: »

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

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

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

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

Snakeweasel

Bandana boy wrote: »

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

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

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

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

Snakeweasel

MarkAnthony wrote: »

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

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

I wouldn't say messer, but workshy could be used to describe them. They reckon that its not money that they are after, but to be honest they are so mad that I couldn't see them wanting to go back to the employer, leaving the small amount of damages as you mentioned as the only comeback if they did pursue a case. As I said in an earlier post, she wouldn't have a lot of money for solicitors for the whole reason for starting this post was to see if there was any point going after the employer under IR act or breach of contract.

Bandana boy

Snakeweasel wrote: »

I think most people would try to help their friend defend themselves if they were treated badly .

Just do not see how she was treated badly .

It does seem that your trying to help her e-lawyer her way around punishing her employer , but why should the employer be punished ?, they did not have to give her one chance and gave her at least one chance if not two.

If we accept that either instance is worthy of dismissal , that calling the final review a probationary review or a performance review instead of disciplinary review makes their actions fair . As a rule the courts try to work to the spirit of the law not just the letter , I would expect very short shrift from the courts.

More importantly , the person your friend needs to be angry with is herself , reality is every job she gets will most likely be the same regarding absences and phoning in , many will be far tougher than this company .

Bogger77

Being given a verbal warning for an issue, doesn't mean it cannot be taken into account, if another breach of discipline occurs. In fact, in this company, 2 warnings would be a major problem for any worker here. 2 Warnings in 3 months, again would be an issue. At least 2 sick days in first 3 months, would be another possible disciplinary issue. Add in that the person is in probationary period, and as such, subject to more scrutiny, it's no surprise that a disciplinary review meeting occurred, and that the person was deemed in breach of the code. The person had responsibilities under the companies code of conduct, they failed to discharge those responsibilities, and indeed failed to discharge them twice in less than 3 months.

As in a criminal case, a person previous convictions cannot be used to assuage guilt, they are used when deciding a sentence, a clean record would mean a lessor sentence, other convictions, esp., for the same or similar offence, normally results in a longer sentence. In the disciplinary world, your "friend" has a prior history of the same breach of conduct, hence is a repeat offender. Most HR handbooks would cover the repeat offender scenario, and your friend would is unlikely to have been treated in breach of guidelines.

Snakeweasel

Bandana boy wrote: »

Just do not see how she was treated badly .

It does seem that your trying to help her e-lawyer her way around punishing her employer , but why should the employer be punished ?, they did not have to give her one chance and gave her at least one chance if not two.

If we accept that either instance is worthy of dismissal , that calling the final review a probationary review or a performance review instead of disciplinary review makes their actions fair . As a rule the courts try to work to the spirit of the law not just the letter , I would expect very short shrift from the courts.

More importantly , the person your friend needs to be angry with is herself , reality is every job she gets will most likely be the same regarding absences and phoning in , many will be far tougher than this company .

I do agree that either or both cases were worthy of dismissal, but in the real world it is easier and cleaner to have just said it wasnt working out and not give a reason. I completely agree that they should be angry with themselves, but I guess I'm too soft with my friends! Sure all I set out to do was to try to see if they should even bother going near a solicitor!

Snakeweasel

Bogger77 wrote: »

Being given a verbal warning for an issue, doesn't mean it cannot be taken into account, if another breach of discipline occurs. In fact, in this company, 2 warnings would be a major problem for any worker here. 2 Warnings in 3 months, again would be an issue. At least 2 sick days in first 3 months, would be another possible disciplinary issue. Add in that the person is in probationary period, and as such, subject to more scrutiny, it's no surprise that a disciplinary review meeting occurred, and that the person was deemed in breach of the code. The person had responsibilities under the companies code of conduct, they failed to discharge those responsibilities, and indeed failed to discharge them twice in less than 3 months.

As in a criminal case, a person previous convictions cannot be used to assuage guilt, they are used when deciding a sentence, a clean record would mean a lessor sentence, other convictions, esp., for the same or similar offence, normally results in a longer sentence. In the disciplinary world, your "friend" has a prior history of the same breach of conduct, hence is a repeat offender. Most HR handbooks would cover the repeat offender scenario, and your friend would is unlikely to have been treated in breach of guidelines.

I agree that they could have been taken into account had a further case of absence happened, however these were the same two cases that had already been dealt with.

TopOfTheHill

Out of curiosity - if you get a verbal warning, does this need to be followed up in writing that you have received this verbal to close the loop?

Bandana boy

Snakeweasel wrote: »

Sure all I set out to do was to try to see if they should even bother going near a solicitor!

Fair enough ,if a friend asked my advice on a situation like this , my first reaction would be no , you are in the wrong here ! move on .

So on that basis I would advise a strong No. If she wanted to continue anyway and you wanted advice on what legislative loop hole you might win a case on , I think this forum will not really provide answers on this as our natural instincts will be to explain why you are in the wrong to take a case.

blindsider

TopOfTheHill wrote: »

Out of curiosity - if you get a verbal warning, does this need to be followed up in writing that you have received this verbal to close the loop?

There should be a record of such a warning.

Some orgs use '1st written warning' instead.

OP - your friend messed up. S/he got away with it once, but twice in fairly quick succession is not acceptable.

From what you've said, the org may not have followed its own procedures, as laid down in the Employee Handbook. However, they are still within their rights to discipline the person and if they feel it justified, terminate their employment - ESPECIALLY if employed months.

Your friend COULD go to court, but I suspect Employment Lawyers (most of them) will run a mile. They have other cases that they feel they might win.

Even if s/he does get 'lawyered up', the medical condition will need to be discussed in detail = medical witnesses etc etc.

The stress your friend will go through will not be worth it (already delicate constitution?) and the company (if big enough) may well make a stand.

Be a good friend, and advise him/her to put it down to experience, move on, and get the medical condition treated properly.

HTH!